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Jensen v. Froissart (6/25/99) sp-5136


     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

LEIF MARK JENSEN,             )
                              )    Supreme Court No. S-7929
               Appellant,     )
                              )    Superior Court No.
          v.                  )    3PA-88-169 CI
                              )
RANDI BETH FROISSART,         )    O P I N I O N
                              )
               Appellee.      )    [No. 5136 - June 25, 1999]
                              )


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Palmer,
                    Beverly W. Cutler, Judge.


          Appearances: Danny W. Burton, Wasilla, for
Appellant.  Randi Froissart, pro se, Wasilla.


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


          BRYNER, Justice.

I.   INTRODUCTION
          In January 1995 the superior court awarded Randi
Froissart a judgment of $3,194 against Leif Jensen for a debt that
the court had originally ordered Jensen to pay in March 1989. 
Although the judgment provided on its face for interest of 10.5%,
it failed to specify when this interest began to accrue.  In 1997,
acting on Froissart's request, the court changed this judgment to
specify that interest accrued from March 1989.  The primary
question presented is whether this change is allowed under Alaska
Civil Rule 60(a), which permits courts to correct judgments for
clerical errors, mistakes, and omissions.  We hold that correction
under Rule 60(a) is proper because the court actually awarded the
disputed interest and merely neglected to incorporate the award
into its judgment. 
II.  FACTS AND PROCEEDINGS
          Randi Beth Froissart and Leif Mark Jensen litigated a
dispute over custody of their two children in 1989.  In March 1989
the superior court entered a decree awarding custody to Froissart
and ordering Jensen to pay monthly support.  The decree included a
provision requiring Jensen to pay Froissart $5,961 as his share of
the children's outstanding medical expenses.  It specified that
Froissart could apply for a judgment as to the medical expenses if
Jensen did not make arrangements to pay the award within thirty
days.
          Jensen failed to pay these medical expenses.  In 1993 he
applied for bankruptcy; the bankruptcy court released him from all
dischargeable debts in December 1993.
          In March 1994, several months after the bankruptcy
discharge, Froissart filed a motion in the superior court
requesting judgment against Jensen for his medical expense debt. 
Froissart asserted that Jensen had paid her nothing, but she
disclosed that the hospital had forgiven a portion of the debt.
Deducting Jensen's share of the forgiven portion, Froissart
calculated that Jensen still owed her $3,194.  She moved for a
judgment in this amount, with statutory interest from March 23,
1989.
          Jensen opposed Froissart's motion, asserting that his
debt to Froissart had been discharged in bankruptcy and claiming
that the "state court no longer has jurisdiction in this matter." 
Froissart responded that the debt was non-dischargeable. 
          The court agreed with Froissart.  In an order issued
January 20, 1995, it ruled that the medical expense award was "in
the nature of support"and was therefore a non-dischargeable debt
under 11 U.S.C. sec. 523(a)(5). [Fn. 1]  Accordingly, the court
ordered that "the Motion for Entry of Judgment is GRANTED and
judgment will be entered."  The court entered its judgment that
same day, evidently using a form submitted by Froissart's counsel. 
The judgment form provided that "Plaintiff [Froissart] have
judgment against Defendant [Jensen] in the amount of $3194.  This
judgment shall bear interest at 10.5%."Jensen unsuccessfully
sought reconsideration but did not appeal the judgment.
          More than a year later, in September 1996, Froissart
moved to amend the judgment to specify that the award of interest
accrued from March 23, 1989, the date the court entered the
original custody decree ordering Jensen to pay the medical
expenses.  Froissart asserted that the judgment's failure to
specify a starting date for interest "was due to an oversight on
her part in failing to include the interest date on the judgment
which she submitted for the court's signature."
          Jensen opposed Froissart's motion, characterizing it as
a motion for relief from judgment under Civil Rule 60(b)(1) based
on "mistake, inadvertence, surprise or excusable neglect,"[Fn. 2]
and arguing that, as such, it violated the applicable one-year
filing deadline. [Fn. 3]  But Froissart replied that she had based
her motion on Civil Rule 60(a), which allows courts "at any time"
to correct "[c]lerical mistakes in judgments . . . and errors
therein arising from oversight or omission."  Insisting that she
had "inadvertently omitted"a starting date for interest on her
judgment form, Froissart urged the court to "correct her omission
by entering an amended judgment providing for interest from the
time the money was ordered to be paid." 
          Jensen moved to strike this reply or, alternatively, to
supplement his earlier response.  He argued that Froissart's
reliance on Rule 60(a) "raised an entirely new ground[]"and was
"outside the scope of her [original] motion and my opposition."
Addressing the merits of Froissart's argument, Jensen claimed that
her omission could not be corrected under Rule 60(a) because it was
a substantive, rather than clerical error: 
               There was no clerical error here. 
Interest debts are discharg[e]able in bankruptcy, and the court
could not award interest, because the interest was discharged in
bankruptcy even if it could treat the principal balance as non-
discharg[e]able child support.  This is not like a transposition of
numbers, or a mistake in math.  There is no way that I could have
known that there was a mistake, just by looking at the judgment. 
The appropriateness of awarding interest was a legal question, not
a matter of clerical work.  So Rule 60(b) applies, not Rule 60(a).

          Without addressing Jensen's motion to strike, the
superior court granted Froissart's motion and entered an amended
judgment providing for interest to run from March 23, 1989.  But
the court did not grant this relief under either Rule 60(a) or
Rule 60(b)(1), as Froissart had requested.  Instead, it specified
"that relief is granted under Civil Rule 60(b)(6), the reason
justifying relief being that plaintiff did not know she had a right
to this interest and thus did not waive it."
          Jensen appeals.
III. DISCUSSION
     A.   Standard of Review
          Jensen's appeal requires us to consider whether the entry
of judgment against him in 1995 should be declared void or
discharged under Alaska Civil Rule 60(b)(4) and (5), whether entry
of an amended judgment in 1996 was proper under Rule 60(b)(6), and
whether the 1996 judgment may alternatively be sustained as a
corrected judgment properly entered under Rule 60(a).  
          Whether the 1995 judgment is void or discharged under
Rule 60(b)(4) and (5) and whether it can be corrected under
Rule 60(a) are questions of law. [Fn. 4]  When questions of law
exist, we exercise our independent judgment and adopt the rule of
law that is most persuasive in light of precedent, reason, and
policy. [Fn. 5]  Whether the court properly granted relief under
Rule 60(b)(6) is a question we review for abuse of discretion. [Fn.
6]  An abuse of discretion occurs when we are "left with a definite
and firm conviction on the whole record that the trial judge has
made a mistake."[Fn. 7]
     B.   Rule 60(b)(4) and (5) -- Subject Matter Jurisdiction and
Discharge
       
          As a threshold matter, Jensen claims that when the
superior court entered judgment against him on January 20, 1995, it
lacked jurisdiction to decide that his federal bankruptcy
proceeding had not discharged the disputed debt for medical
expenses.  In Jensen's view, only the bankruptcy court had
jurisdiction over this issue.  He argues that the January 1995
judgment is therefore void and must be set aside under Civil
Rule 60(b)(4). [Fn. 8]  Jensen's argument lacks merit.  While
federal law determines whether a debt is dischargeable, [Fn. 9]
"state and federal courts have concurrent jurisdiction to decide
the issue."[Fn. 10] 
          Jensen also contends that when the court entered the
January 1995 judgment it erred in concluding that his medical
expense debt was non-dischargeable under 11 U.S.C. sec. 523(a)(5).
Jensen claims that he is therefore entitled to relief from that
judgment under Civil Rule 60(b)(5), which provides that the court
can grant relief from a judgment when it "has been satisfied,
released, or discharged."  But Jensen fully litigated this issue
before the superior court entered the 1995 judgment.  He lost on
the merits of his argument and then failed to appeal.  The superior
court's ruling on discharge is therefore final, and it now bars
Jensen from relitigating the issue. [Fn. 11]
     C.   Rule 60(b)(6) -- Good Cause Based on Lack of Knowledge of
the Right to Interest 
     
          The parties agree that the superior court erred in
ordering relief from judgment under Rule 60(b)(6). [Fn. 12]  The
court's theory for granting Froissart relief under this provision
was that Froissart did not know of her right to receive statutory
interest when she submitted the original judgment form.  But
Froissart has never claimed ignorance of her right to receive
interest, and the record establishes that she was aware of this
right.  In her motion that led to entry of the January 1995
judgment, Froissart expressly requested "statutory interest from
March 23, 1989."  And in her 1996 motion to amend the 1995
judgment, Froissart emphasized that she had specifically requested
an award of interest from March 1989, explaining that the 1995
judgment's omission of this date was "due to an oversight"that
occurred when she submitted the judgment form for the court's
signature. 
          Given these facts, we conclude that the superior court
abused its discretion in granting relief under Civil Rule 60(b)(6)
on the theory that Froissart had not been aware of her right to
receive interest.
     D.   Rule 60(a) -- Correcting Oversights and Omissions
          Although Froissart acknowledges that the court erred in
granting relief under Rule 60(b)(6), she urges us to uphold the
amended judgment based on Civil Rule 60(a).  Jensen protests that
Froissart did not preserve this claim through cross-appeal.  But
Froissart's appellate brief argues that the superior court erred in
failing to grant relief under Rule 60(a), and this court "may
affirm the superior court's decision on any basis appearing in the
record."[Fn. 13]
          Alaska Civil Rule 60(a) allows courts to correct
mistakes, errors, and omissions at any time. [Fn. 14]  But this rule
is limited in scope to objectively ascertainable errors in form
rather than substance: 
               [T]he relevant test for the applicability
of Rule 60(a) is whether the change affects substantive rights of
the parties and is therefore beyond the scope of Rule 60(a) or is
instead a clerical error, a copying or computational mistake, which
is correctable under the Rule.  As long as the intentions of the
parties are clearly defined and all the court need do is employ the
judicial eraser to obliterate a mechanical or mathematical mistake,
the modification will be allowed.  If, on the other hand,
cerebration or research into the law or planetary excursions into
facts is required, Rule 60(a) will not be available to salvage . .
. blunders. . . . It is only mindless and mechanistic mistakes,
minor shifting of facts, and no new additional legal perambulations
which are reachable through Rule 60(a).[ [Fn. 15]]

          Despite Jensen's arguments to the contrary, Froissart's
case meets these narrow criteria.  In its original custody decree
of March 1989, the superior court ordered Jensen to repay Froissart
for their children's medical expenses.  The decree itself was a
judgment and, as such, gave Froissart the right to collect post-
decree interest on the award for medical expenses.  Civil
Rule 54(a) defines "judgment"to include "a decree and any order
from which an appeal lies."  And at all times relevant to this case
AS 09.30.070(a) provided that "[t]he rate of interest on judgments
and decrees for the payment of money is 10.5 percent a year."[Fn.
16]  The decree thus entitled Jensen to interest as a matter of
course.   
          In 1994 Froissart moved for entry of a judgment
establishing the amount Jensen still owed her for the medical
expense debt.  Jensen objected, asserting that the entire debt had
been discharged in bankruptcy.  The superior court rejected this
defense and, on January 20, 1995, expressly granted Froissart's
motion for entry of judgment.  An integral part of Froissart's
motion was her request for "statutory interest from March 23,
1989."  Nothing in the phrasing of the order granting Froissart's
motion suggests that the court intended to sever her request for
judgment on the principal debt still owing from her request for the
accrued statutory interest to which she was entitled as a matter of
course.  The order unequivocally granted the motion in its
entirety, including its request for accrued statutory interest.
          Jensen suggests that the court might have intended to
enter judgment on the principal but not on accrued interest because
the interest may have been discharged in his bankruptcy even if the
principal had not been discharged.  But his contention finds no
support in the record and is unrealistic.  As we have already
mentioned, Froissart's 1994 motion for entry of judgment expressly
requested judgment on both principal and accrued interest.  In his
response to that motion, Jensen merely claimed that the medical
expense debt had been discharged in its entirety; he did not
contend that interest should be treated differently than principal.
Jensen first argued for separate treatment of interest and
principal more than a year later, after Froissart moved to amend
the judgment.  Thus, the court's January 1995 ruling that Jensen's
debt had not been discharged plainly encompassed both principal and
accrued interest.  The merits of this ruling are now final and no
longer open to challenge. [Fn. 17] 
          Jensen nevertheless insisted below that the 1995 judgment
cannot properly be corrected under Rule 60(a) because it shows no
sign of any defect: "There is no way that I could have known that
there was a mistake, just by looking at the judgment."  But we
disagree.  Considering the 1995 judgment together with Froissart's
motion for entry of judgment and the order granting her motion, we
find it clear that the court's failure to specify a starting date
for interest on the judgment form is an omission.  For as we have
already pointed out, the court unequivocally granted Froissart's
motion in its entirety, and the motion itself expressly
incorporated a request for accrued interest. [Fn. 18]       
          In short, the record as it existed when the court entered
the disputed 1995 judgment provides objective information
confirming Froissart's assertion that the superior court in fact
directed entry of judgment in the principal amount of $3,194
bearing interest at 10.5% from March 23, 1989, but that the form on
which it entered judgment inadvertently omitted the starting date
for this award of interest.  It makes no difference whether we
attribute this mistake to the court or to Froissart, for, as we
have previously recognized, Civil Rule 60(a) draws no such
distinction: "[A] clerical mistake may include those made by a
party . . . ."[Fn. 19]  
          Here, correcting the disputed omission entails no factual
findings or legal conclusions beyond those already made by the
superior court, no "cerebration or research into the law or
planetary excursions into facts,"[Fn. 20] and no judicial function
other than a careful examination of the objective record as it
existed when the court entered judgment.  
          Accordingly, we hold that the judgment of January 20,
1995, could properly be corrected under Civil Rule 60(a).  Since
Froissart requested correction under this rule and the rule itself
entitles her to the relief she requested, we attach no particular
significance to the fact that the superior court decided to grant
relief under a different, inapplicable provision.  The significant
point, in our view, is that the court properly granted relief. 
IV.  CONCLUSION
          We AFFIRM the amended judgment.


                            FOOTNOTES


Footnote 1:

     11 U.S.C. sec. 523(a)(5) provides, in relevant part: 

          A discharge under [Chapter 7] . . . does not
discharge an individual debtor from any debt . . . to a spouse,
former spouse, or child of the debtor, for alimony to, maintenance
for, or support of such spouse or child, in connection with a
separation agreement, divorce decree or other order of a court of
record . . . .


Footnote 2:

     Alaska R. Civ. P. 60(b)(1).


Footnote 3:

     See Alaska R. Civ. P. 60(b).  


Footnote 4:

     See DeVaney v. State ex rel. DeVaney, 928 P.2d 1198, 1200
(Alaska 1996) ("Whether an error is properly classified as a
'clerical error' as that term is used in Rule 60(a) involves
interpretation of that rule and therefore is a question of law.")
(citation omitted); see also, e.g., Aguchak v. Montgomery Ward Co.,
520 P.2d 1352, 1354 (Alaska 1974) ("[N]o question of the lower
court's discretion is presented by a Rule 60(b)(4) motion because
the validity of a judgment is strictly a question of law.").


Footnote 5:

     See State, Dep't of Revenue v. Wetherelt, 931 P.2d 383, 390
n.11 (Alaska 1997) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6
(Alaska 1979)).


Footnote 6:

     See Babinec v. Yabuki, 799 P.2d 1325, 1332 (Alaska 1990)
("Motions for relief from judgment brought under Civil Rule 60(b)
are addressed to the sound discretion of the trial court and are
reviewable on appeal only for an abuse of discretion.").


Footnote 7:

     Id. (citation omitted).


Footnote 8:

     Alaska R. Civ. P. 60(b)(4) provides: "On motion and upon such
terms as are just, the court may relieve a party or a party's legal
representative from a final judgment, order, or proceeding . . .
[when] the judgment is void[.]"


Footnote 9:

     See 11 U.S.C. sec. 523(a)(5).


Footnote 10:

     In re Siragusa, 27 F.3d 406, 408 (9th Cir. 1994) (citation
omitted); see also In re Crawford, 183 B.R. 103, 105 (Bankr. W.D.
Vir. 1995) (stating that bankruptcy courts only have exclusive
jurisdiction to decide exceptions to discharge arising under
sec. 523(a)(2), (4), (6), and (15)). 


Footnote 11:

     See Calhoun v. Greening, 636 P.2d 69, 72 (Alaska 1981)
(concluding that the doctrine of res judicata precludes
relitigation not only of those "claims that were raised in the
initial proceeding, but also of those relevant claims that could
have been raised then"); see also Burrell v. Burrell, 696 P.2d 157,
163 (Alaska 1984) ("Civil Rule 60 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.").


Footnote 12:

     This catch-all provision allows the court, within a reasonable
time of entering judgment, to grant relief for "any other reason
[not stated elsewhere in the rule] justifying relief from the
operation of the judgment."  Alaska R. Civ. P. 60(b)(6). 


Footnote 13:

     Pierce v. Pierce, 949 P.2d 498, 500 (Alaska 1997); see also 
Far N. Sanitation, Inc. v. Alaska Pub. Util. Comm'n, 825 P.2d 867,
869 n.2 (Alaska 1992) (rejecting contention that opposing side's
argument was waived by not filing a cross-appeal).


Footnote 14:

     Alaska Civil Rule 60(a) provides:
  
               Clerical mistakes in judgments, orders or
other parts of the record and errors therein arising from oversight
or omission may be corrected by the court at any time of its own
initiative or on the motion of any party and after such notice, if
any, as the court orders.


Footnote 15:

     In re West Texas Marketing Corp., 12 F.3d 497, 504-05 (5th
Cir. 1994).


Footnote 16:

     See Ch. 107, sec. 1, SLA 1980.  Jensen does not contend that
the
1989 decree's provision requiring him to pay medical expenses
should not be deemed "a decree[] for the payment of money."


Footnote 17:

     See discussion supra note 11.


Footnote 18:

     We also find it noteworthy that the court entered the judgment
on a form prepared and submitted by Froissart.  Alaska Civil Rule
78(e) requires that a "party preparing a form of judgment shall
show on the proposed judgment the date prejudgment interest should
begin."  That Froissart's judgment form failed to comply with this
rule is a telling indication that its failure to specify a starting
date for accrual of interest was an omission.  


Footnote 19:

     Babinec v. Yabuki, 799 P.2d 1325, 1337 (Alaska 1990). 


Footnote 20:

     West Texas Marketing, 12 F.3d at 504-05.