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Lacher v. Lacher (12/10/99) sp-5214

     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
                                 

TARIE S. LACHER,              )
                              )    Supreme Court No. S-8441
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3PA-94-733 CI
                              )
LOUIS R. LACHER, JR.,         )    O P I N I O N
                              )
             Appellee.        )    [No. 5214 - December 10, 1999]
______________________________)




          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Palmer,
                 Peter G. Ashman, Judge pro tem.


          Appearances: William T. Ford, Anchorage, for
Appellant.  Jill K. Dean, Anchorage, for Appellee.


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


          FABE, Justice.


I.   INTRODUCTION
          In April 1992 Louis R. (Bob) and Tarie Lacher filed for
dissolution of marriage and entered into a property settlement
agreement that was incorporated into their dissolution decree.  The
parties agreed that Tarie would receive the marital home and the
majority of the parties' other property.  Several months later, the
parties reconciled and continued to live together, unmarried, for
over two more years.  In June 1996 Bob moved to set aside the
original dissolution decree, requesting that the court redistribute
the marital and post-dissolution property.  He claimed that he and
Tarie had never physically or financially separated and that they
had omitted numerous marital assets from the original agreement.  
          The trial court granted Bob's motion and held a trial on
the property issues, awarding Bob the marital home and other
property originally awarded to Tarie.  The court also imputed
income to Tarie for the purpose of calculating child support. 
Tarie appeals the trial court's decision to set aside the divorce
decree, its division of property, and its child support
determination.  
          While the trial court properly granted Bob's motion to
set aside the original property settlement agreement, it erred in
its determination and division of marital assets and its
calculation of child support.  Accordingly, we reverse. 
II.  FACTS AND PROCEEDINGS
          Bob and Tarie Lacher married in April 1982.  Bob worked
as a building contractor for his own corporation, L.R. Lacher,
Inc., earning approximately $56,000 a year.  Although she worked
part-time as a secretary for Lacher, Inc., earning $15,600 a year,
Tarie was primarily a homemaker.  When they petitioned for
dissolution of their marriage in January 1992, they had a daughter,
Kelly, and Tarie was pregnant with their second child, Marshall,
who was born in August 1992.
          Although they differ on the details, the Lachers agree
that a primary motive for the original dissolution was to protect
their assets from Bob's potential creditor, Nye Ford.  In January
1992 Nye Ford sued Bob; Bob and Tarie filed for dissolution the
same month.  Bob testified that "we were both worried about how
much it might cost me to defend myself . . . [and] I wanted to be
sure that if I had to fight for two years to clear my name, my kids
would have a place to live."  He also stated that he and Tarie were
not "getting along very well"and that she had a boyfriend. 
Although she claims not to have supported the tactic of divorcing
to protect their assets, Tarie agreed that the threat of Nye's
lawsuit prompted the original discussion of dissolution.  Tarie
claims that Bob promised to remarry her as soon as the Nye lawsuit
ended.
          When they filed their dissolution petition, Bob and Tarie
entered an agreement on custody and visitation, child support, and
distribution of marital property.  The parties agreed to award
custody of Kelly to Tarie and liberal visitation to Bob. The
agreement required Bob to pay $768 a month in child support for
Kelly, increasing to $1,037 a month once the baby was born, and
$500 a month in spousal support "until the children are school age
and the mother is retrained and earning at least [$]40,000 a year
from employment."
          Tarie received the marital home, located next to Bob's
mother's home, and an undeveloped lot.  Bob received a thirty-nine
percent interest in Alaska First Venture, a commercial building co-
owned by Bob's parents, and a one-third interest in Bob and Tarie's
two homes in Palmer.  Each party assumed the liability for his or
her respective real properties.  According to the agreement's
personal property division, Bob took $102,440 of Lacher, Inc. stock
including property described as the Snodgrass lots valued at
$49,500, while giving Tarie a promissory note for $46,660 for her
share; Tarie received a Ford truck worth $8,500; and Bob and Tarie
split a $26,000 certificate of deposit, twenty-five percent to Bob
and seventy-five percent to Tarie.  They also divided their Lacher,
Inc. retirement account, with seventy-eight percent to Bob and
twenty-two percent to Tarie.  Superior Court Judge Beverly W.
Cutler incorporated Bob and Tarie's agreement into the dissolution
decree, finding that the parties had satisfied the statutory
requirements [Fn. 1] and that the agreement was just.
          Several months later, Bob and Tarie resumed living
together in the marital home.  The parties agree that "there was no
attempt . . . to divide their assets, debts, income, expenses, [or]
any aspect of the financial relationship"until June 1995, two
years after the dissolution.  Tarie wrote checks from the Lacher,
Inc. corporate account to deposit in their joint personal account
in order to pay Bob and Tarie's joint bills, including house
payments and improvements to the house and other properties.  The
parties even used the $46,660 promissory note awarded to Tarie in
the dissolution decree to lower Lacher, Inc.'s tax liability in
1993 [Fn. 2] and to purchase a $10,000 airplane. [Fn. 3]  The
parties also jointly spent $16,000 of the $26,000 certificate of
deposit awarded to Tarie upon dissolution.  Because of their
cohabitation and commingling of funds, Bob never paid child or
spousal support.  The parties then had a third child, Amy, in
February 1994.
          Sometime between June 1994 and June 1995, the parties
separated again.  Bob claimed that the parties physically and
financially separated in June 1994.  During that month, Tarie was
locked behind prison bars with inmates during a fire alarm while
she was employed at the Palmer Correctional Center.  This
experience triggered a psychotic episode.  On July 12, 1994,
Tarie's family petitioned for Tarie's involuntary commitment for
psychiatric evaluation and treatment.  Dr. James F. Harper assessed
Tarie in October 1994 and found that "she may have suffered an
acute psychotic episode marked by paranoid ideation/delusional
beliefs, and that she seemed to be largely in remission."  Tarie
agrees that Bob moved out of the marital home in July 1994 because
of her mental illness.  Because of Tarie's state of mind, Bob also
petitioned for custody of their youngest daughter [Fn. 4] and moved
to modify custody of the two older daughters on July 14.  But Tarie
claims that she and Bob continued a romantic and sexual
relationship until June 1995.  They ultimately stipulated to a June
1995 date of economic separation.
          In February 1995 Tarie sued the state for sexual
harassment that she claimed to have experienced while working at
the Palmer Correctional Center.  Tarie settled the case in December
1995 and received a net recovery of approximately $50,000.  She
attests that $5,000 of the settlement was for lost wages and that
$45,000 was for her pain and suffering.
          In March 1996 the parties finally settled the child
custody issue.  They modified their dissolution decree to provide
for joint legal custody and shared physical custody, with the
children living with each parent during alternating weeks.  They
agreed that child support obligations should be set in accordance
with Alaska Civil Rule 90.3.
          Three months later, Bob moved to modify the dissolution
decree, requesting that it be set aside pursuant to Alaska Civil
Rule 60(b)(6). [Fn. 5]  He claimed that the property distribution
omitted a number of items of marital property, including a $10,000
boat, a $19,700 airplane, a $25,000 marital interest in the fifty-
seven acre Fairview Loop property, [Fn. 6] a $9,200 lakefront
property, and the parties' $10,000 individual retirement accounts. 
Tarie opposed this motion, maintaining that "[t]his is a case in
which there is both an enforceable dissolution agreement and a
domestic partnership pursuant to which joint personal property must
be divided."  She listed the post-dissolution property as the
Subaru and Saab, floats for the airplane, their joint accounts, and
household furniture.
          On September 17, 1996, Superior Court Judge pro tem Peter
G. Ashman set aside the property distribution in the dissolution
decree based on Civil Rule 60(b).  He found that the property
distribution was "woefully inadequate"and that the parties never
evidenced an intent to dissolve the marriage.  The court then set
a November 4, 1996 trial date for resolution of the property issues
and the parties agreed to this date.
          At an October 16 pre-trial conference and hearing on
child support issues, Tarie requested a continuance of trial
because she was attempting to hire a new attorney and because
necessary appraisals had not yet been performed.  The court agreed
to grant a continuance of the pre-trial conference but denied the
continuance for trial, instructing Tarie to tell her new attorney
that the court would not grant any more continuances.
          Yet on October 25 Tarie's substituted counsel moved to
continue the trial.  At the continued pre-trial conference hearing
four days later, the trial court again denied the trial
continuance, commenting that the case had been in the court for
almost two years and that the court had "begged and pleaded"with
the parties to reach some type of settlement.
          Tarie then requested that Judge Ashman recuse himself
because of his involvement in her psychiatric commitment
proceedings and his failure to allow her sufficient time to prepare
for the trial in the pre-trial order.  Judge Ashman declined to
recuse himself.
          Prior to trial, Bob submitted a proposed distribution of
the property.  At trial, Tarie requested at least an eighty percent
interest in the marital estate and stated that a fair settlement
would be "[t]hat I retain . . . the marital house, and at least
$30,000.00 in cash so I can pay off the debt owed on the house."  
          After a four-day trial, Judge Ashman redistributed the
property, adopting Bob's proposed distribution in all respects. 
The superior court awarded Bob the marital home and the Ford truck,
while Tarie received the note on the Palmer houses and the Lacher,
Inc. assets, which included the Subaru and Snodgrass lots.  Of the
assets that Bob claimed were omitted, the court awarded Bob the
airplane and his own retirement account, while Tarie received the
boat and the Fairview Loop property.  In determining child support,
the court imputed income of $20,000 in wages to Tarie because it
found that she was voluntarily underemployed.
          Tarie appeals the trial court's decision to grant the
Rule 60(b)(6) motion to set aside the original dissolution decree,
its redistribution of the property, its denial of her motion to
continue the trial, its ruling on the petition for recusal, and the
amount of income imputed to her in the trial court's calculation of
child support.
III. DISCUSSION
     A.   The Trial Court Properly Granted Bob's Motion to Modify
the Original Dissolution Decree's Property Distribution.
          Tarie contends that the trial court erred when it set
aside the property distribution contained in the dissolution decree
under Alaska Civil Rule 60(b)(6). [Fn. 7]  Because Bob and Tarie's
divorce decree incorporated their property settlement agreement,
the property division is a final judgment. [Fn. 8]
          But Alaska Civil Rule 60(b) authorizes a court to set
aside a final judgment that is unjust. [Fn. 9]  Rule 60(b)(6)
provides that a court may relieve a party from a final judgment for
"any other reason justifying relief from the operation of the
judgment"as long as the party moves for relief "within a
reasonable time."  A party can invoke subsection (b)(6) only if
none of the other five clauses apply and "extraordinary
circumstances"exist: [Fn. 10]
          In general, relief is given under clause (6)
in cases in which the judgment was obtained by the improper conduct
of the party in whose favor it was rendered or the judgment
resulted from the excusable default of the party against whom it
was directed under circumstances going beyond the earlier clauses
of the rule . . . .
     
          . . . The broad power granted by clause (6) is
not for the purpose of relieving a party from free, calculated, and
deliberate choices he has made.  A party remains under a duty to
take legal steps to protect his own interests.[ [Fn. 11]]

          We have articulated four factors that may constitute
extraordinary circumstances sufficient to set aside a property
division in a final divorce decree under Rule 60(b)(6): "(1) the
fundamental, underlying assumption of the dissolution agreement had
been destroyed; (2) the parties' property 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."[Fn. 12]  Because these factors merely
serve as equitable factors for the court to consider, each factor
need not be present in order for the court to properly grant Rule
60(b)(6) relief. [Fn. 13]
          In support of the trial court's decision to grant the
Rule 60(b)(6) motion, Bob first maintains that the underlying
assumption of the parties that he and Tarie would continue to live
together and share the marital assets had been destroyed.  He
relies on Foster v. Foster, [Fn. 14] in which the parties assumed
at the time of the divorce that they would continue living as a
family unit after the final dissolution decree.  With this
understanding, the parties in Foster agreed to a property
settlement that awarded the wife a one-half interest in the marital
home upon sale but gave the husband sole discretion as to when it
would be sold.  The parties later ceased living together.  Because
the underlying assumption of the property agreement was destroyed,
we concluded that modification of the original decree to provide
for immediate payment to the wife for her share of the marital home
was appropriate. [Fn. 15]  
          But the underlying assumption in this case is not so
clear.  At the time of dissolution, Bob and Tarie agreed that the
primary motive in dissolving their marriage was to protect their
assets from Nye Ford's lawsuit against Bob. [Fn. 16]  But the
evidence does not indicate whether they intended to continue to
live together after the dissolution.  Bob testified that he and
Tarie were having problems at the time of dissolution because Tarie
had a boyfriend.  On the other hand, Tarie claims that Bob promised
to remarry her as soon as the Nye lawsuit ended.  The trial court
made no finding as to Bob and Tarie's underlying assumption at the
time of their dissolution or how it had been destroyed.
          But the trial court's alternative basis for its decision
to reopen the property division -- that the parties omitted several
marital assets from the dissolution agreement -- provides
independent support for the trial court's decision.  Here, the
trial court granted Bob's motion to set aside the property
distribution in part because the division was "woefully
incomplete."  Indeed, the property agreement incorporated in the
divorce decree allocated approximately $250,000 of the marital
estate but did not include all of the parties' marital assets.  The
parties dispute the total sum of the omitted assets:  Bob claims
that the omitted assets total over $100,000 while Tarie asserts
that the assets total $60,000.  In either event, the trial court
correctly granted the Rule 60(b)(6) motion to set aside the decree
because the original property division failed to dispose of
substantial items of marital property. [Fn. 17]
     B.   The Trial Court Properly Denied Tarie's Motions to
Continue the Trial.

          Once the trial court reopened the property distribution,
Tarie twice moved to continue the trial, but the trial judge denied
both motions. [Fn. 18]  Tarie appeals the denials of her motions to
continue the trial because she "had to try the case on very short
notice with new counsel."
          Tarie maintains that she was prejudiced because neither
her initial attorney nor her subsequent counsel could have
effectively prepared for a trial on the property issues on such
short notice.  Specifically, she claims that because she had
"virtually no warning"that the court would redistribute the
property, she did not have time to obtain the necessary appraisals
in preparation for trial.  We disagree.
          In Siggelkow v. Siggelkow, [Fn. 19] we expressly observed
that late retention of counsel does not necessarily warrant a
continuance:
          [W]hen new counsel is engaged just prior to
the trial date, the alleged lack of preparation on the part of such
counsel is not necessarily a ground for continuance; . . .  If the
rule were otherwise, one or the other of the litigants could
indefinitely avoid trial of the issues by making late
substitutions.[ [Fn. 20]]

Shortly before trial, Tarie elected to change attorneys.  The trial
court warned her that her decision to hire a new attorney would not
entitle her to a continuance of trial.  She secured new counsel on
October 18, leaving her replacement attorney three weeks to prepare
for trial.  Despite this short notice, Tarie concedes that "[her]
new counsel did an adequate job of presenting evidence."
          Furthermore, Tarie had adequate time to obtain
appraisals.  Judge Ashman set aside the property distribution in
the divorce decree on September 20, approximately six weeks before
the trial.  At that time, Bob's attorney mentioned in court that
"some appraisals needed to be done."  The parties ultimately
stipulated to many of the property values before trial.  Where no
stipulation was entered, the parties presented testimony or relied
on earlier valuations of the property.  In light of these
circumstances, the trial court did not abuse its discretion in
denying the motions to continue.  
     C.   The Trial Judge Did Not Err in Refusing to Recuse
          Himself.

          Tarie argues that Judge Ashman should have recused
himself from this case because he had been extensively involved in
the proceedings for Tarie's involuntary commitment to psychiatric
care and in the settlement conferences and litigation leading to
the divorce trial. [Fn. 21]  Here, Tarie states in her brief that
she did not suspect any bias by Judge Ashman against her until
"after he had rendered his decision setting aside the property
division without making any particular findings or explaining his
reasoning for doing so."  But this argument is little more than an
expression of Tarie's dissatisfaction with the superior court's
ruling.  The trial court's decision did not "demonstrate any
specific bias or generalized pattern of bias."[Fn. 22]
          Tarie also questions the trial court's basis for finding
that her relationship with Bob's mother was strained.  She asserts
that because the parties presented no evidence of any animosity
between Bob's mother and Tarie, Judge Ashman thus must have
improperly considered information from outside sources in deciding
to award the marital home to Bob.  But the evidence at the trial on
property issues supported the trial court's observation of
animosity between Tarie and her mother-in-law.  While Bob's mother
did not testify on this issue, Tarie did concede that problems had
arisen over the years in her relationship with her mother-in-law. 
Bob also testified to "bad blood"between Tarie and his mother. 
Thus, Judge Ashman's finding on this issue does not evidence bias
or improper consideration of facts outside of the record at trial. 
We affirm his decision not to recuse himself. [Fn. 23]
     D.   The Trial Court Erred in Dividing the Property upon
Redistribution.

          We now turn to the trial court's valuation and division
of Bob and Tarie's marital property in its modification order. [Fn.
24] "Property division in Alaska consists of three steps:
determining what property is available for distribution, placing a
value on that property, and allocating the property equitably."
[Fn. 25]  
          1.   Characterization of property
          When dividing property between divorcing parties, the
trial court must distribute all assets acquired during marriage.
[Fn. 26]  The proper date for distinguishing marital from post-
marital assets is the date "when the marriage has terminated as a
joint enterprise"or "when a married couple cease functioning
economically as a single unit."[Fn. 27]  Although assets acquired
by an unmarried couple during a period of cohabitation are
distributed according to a different method [Fn. 28] and the
parties in this case were no longer married after their 1992
dissolution, they stipulated to a June 1995 date of economic
separation and agreed that the trial court should consider as
marital property all assets accumulated as of that date.
          Tarie challenges the trial court's characterization of
certain items of property as marital.  Tarie first argues that the
trial court should not have classified the entire Fairview Loop
property as a marital asset because Bob's mother, Barbara Lacher,
owned half of that property.  Prior to dissolution, Bob purchased
a one-half interest in the Fairview Loop property with marital
funds.  Because he used joint funds, the one-half interest was
indeed marital property. [Fn. 29]  Bob testified that after the
dissolution, he transferred the parties' interest in the property
to his mother but that she agreed to transfer the entire property
back to him to help settle the lawsuit.  Upon redistribution, the
trial court awarded to Tarie the value of the entire Fairview Loop
property, "including the one half of the value owned by . . . the
mother of the petitioner."  But Bob's mother's one-half interest in
the property was never marital property and thus was not available
for distribution.  Moreover, forcing Tarie to take unwanted non-
marital property belonging to a third party in lieu of the cash or
other marital property necessary to achieve an equitable
distribution unfairly benefits Bob.  Thus, the trial court erred in
including Bob's mother's interest in the Fairview Loop property in
its distribution of marital property.
          Tarie next contends that the trial court erred in
considering her entire settlement as marital property.  Although
both the sexual harassment of which Tarie complained and the filing
of her lawsuit occurred during the period that she and Bob were
living together and functioning as an economic unit, we agree with
Tarie that the entire settlement should not necessarily be
classified as marital property.  
          In Bandow v. Bandow, [Fn. 30] we concluded that "the
purpose for which the [tort] recovery is received controls its
classification."[Fn. 31]  If the recovery compensates for losses
to the marital estate, the settlement proceeds should be classified
as marital property. [Fn. 32]   But to the extent the recovery
compensates for "lost post-marital earning, post-marital medical
expenses, and [her] pain and suffering (both during and after
marriage),"the award should be classified as her separate
property. [Fn. 33]
          Tarie testified that only $5,000 of the settlement was to
compensate for lost earnings while the remaining $45,000 was for
her personal pain and suffering.  Bob presented no controverting
evidence.  Accordingly, only $5,000 qualifies as a marital asset
available for distribution.
          Moreover, Tarie claims that by the time of trial, the
settlement proceeds had been spent on such expenses as child care,
clothes for the children, food, house maintenance, and utility
expenses, as well as attorney's fees.  Thus, the marital portion of
the settlement proceeds may have been expended for the benefit of
both Bob and Tarie by the time of trial and thus would be
unavailable for division.  On remand, the trial court should
determine whether the $5,000 marital portion of Tarie's settlement
remained available for distribution.
          2.   Valuation of property
          Tarie also challenges the trial court's valuation of the
marital home, the Snodgrass lots included in the Lacher, Inc.
assets, and the marital portion of the Fairview Loop property. 
First, Tarie disputes the trial court's valuation of the marital
home at $126,000, when the parties stipulated to a value of
$136,200 at trial.  In fact, Bob did stipulate to a fair market
value of $170,000 for the home and a mortgage of $33,800.  The
trial court did not give any reasons for arriving at a fair market
value for the marital home of $126,000, rather than the agreed upon
$136,200.  Thus, the trial court's valuation of the home was
clearly erroneous.
          Second, Tarie contends that the Snodgrass lots have a
value of $23,000-$25,000, rather than the trial court's determined
value of $49,500.  While her expert testified that the lots might
take a year or longer to sell unless reduced to $23,000-$25,000,
Tarie's expert also calculated a fair market value of $49,000 at
the time of trial.  Bob's expert similarly stated that the fair
market value was $49,500. Given that both experts' current
valuations of the lots support the court's valuation, the trial
court's valuation of the Snodgrass lots at $49,500 was not clearly
erroneous.
          Third, Tarie maintains that the trial court erred in
valuing the Fairview Loop property at $91,200.  While Tarie admits
that her attorney stipulated to a value of $45,600, she asserts
that this amount represents the value of the entire property, not
just the marital one-half interest.  In fact, Bob did take
inconsistent positions on this issue:  In his motion to set aside
the dissolution decree, he estimated the value of the parties'
partial interest in the Fairview Loop property to be $25,000, but
at trial, he maintained that the stipulated value of $45,600
applied to that one-half marital interest rather than the entire
property.  The stipulation of property values filed by the parties
before trial did not specify whether $45,600 represented the
partial or full value of the Fairview Loop property.  Because of
this discrepancy and the trial court's failure to resolve it, the
trial court must reconsider its valuation of the marital portion of
the Fairview Loop property on remand.
          3.   Equitable distribution
          Relying on the parties' educational backgrounds and
relative financial situations, the court awarded the marital home
to Bob and other valuable properties to Tarie, resulting in a 60/40
final distribution in Tarie's favor.  Tarie argues that the
distribution is inequitable, primarily because the trial court did
not award her the marital home and instead required her to take the
entire Fairview Loop property.
          The trial court based its decision to award the home to
Bob on Tarie's strained relations with her former mother-in-law,
who lives next door.  Concerned that placing Tarie and Bob's mother
in close proximity could cause problems for the children, it
reasoned that it could not "in [good] conscience even consider
awarding the family home to [Tarie]"because of her poor
relationship with her former in-laws and that its award of the
entire Fairview Loop property to Tarie was "the only way to balance
the issue of the home."  Because we have reversed the award of the
entire Fairview Loop property to Tarie and have identified other
errors in the identification and valuation of property, the trial
court will need to adjust its overall distribution of property. 
Given its concerns about the poor relationship between Tarie and
her former mother-in-law, the trial court may wish to reconsider
awarding Tarie the marital interest in the Fairview Loop property,
because to do so would place Tarie and Bob's mother in co-ownerhip.
     E.   The Trial Court Erred in Calculating the Child Support
Obligation.

          Tarie contends that the trial court erred in imputing a
$20,000 income to Tarie. [Fn. 34]  Here, noting Tarie's past work
earnings and her college degree, the trial court found that Tarie
was voluntarily underemployed and that she could earn $11 an hour,
approximately $22,800 a year, if she chose to take available work.
Moreover, Tarie's counsel stated in her closing argument that with
Tarie's skills and work experience, Tarie could earn from $10-$12
an hour.  Thus, the trial court's imputation of a $20,000 wage
income is not clearly erroneous.
          But the trial court also included $2,000 of interest from
Tarie's $50,000 settlement proceeds in its calculation of Tarie's
income.  If, as Tarie contends, the lawsuit proceeds had been
exhausted by the time of trial, they are no longer available to
generate interest income.  If this is the case, the court erred in
including $2,000 of interest income in its determination of
adjusted income for child support purposes.  As a result, we remand
so that the court may determine whether Tarie is receiving this
interest income and recalculate the child support obligation as
necessary. [Fn. 35]
IV.  CONCLUSION
          We conclude that the trial court properly granted the
Rule 60(b)(6) motion to set aside the divorce decree in order to
allocate the omitted assets.  Because Tarie's late retention of
counsel and failure to secure appraisals did not justify a
continuance, we conclude that the trial court correctly denied
those motions.  Moreover, we conclude that Judge Ashman properly
refused to recuse himself because Tarie's claim of bias by Judge
Ashman is unfounded.  Accordingly, we AFFIRM each of these rulings.
          But the trial court improperly considered Bob's mother's
interest in the Fairview Loop property and the entire amount of the
lawsuit proceeds as marital property.  The court also erred in its
valuation of the marital home and failed to resolve conflicts in
the value of the Fairview Loop property.  Thus, we REMAND to the
trial court to reassess and redistribute the marital assets. 
Finally, we conclude that the trial court correctly imputed $20,000
in income to Tarie but may have erred in including $2,000 of
interest from the lawsuit proceeds in its calculation.  Thus, we
REMAND on that limited issue as well.


                            FOOTNOTES


Footnote 1:

     See AS 25.24.160(a)(2) & (4); AS 25.24.200(a).


Footnote 2:

     Bob claims that he eventually paid $18,000 in taxes from his
separate post-June 1995 earnings because of an audit and his and
Tarie's joint decision to write off her note in this manner. The
superior court acknowledged the tax debt in its findings of fact.


Footnote 3:

     Bob does not dispute that the parties used Tarie's note for
this purpose.


Footnote 4:

     The superior court consolidated this petition for Amy's
custody with the original dissolution proceedings.


Footnote 5:

     Alaska Civil Rule 60(b) 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 for the following reasons:

          . . . .

          (6)  any other reason justifying relief from
the operation of the judgment.


Footnote 6:

     The parties later stipulated to a value of $45,600 for the
Fairview Loop property, but the record does not clearly indicate
whether this amount was the value of the entire property or only
the marital half.


Footnote 7:

     We will not disturb a trial court's ruling on a Rule 60(b)(6)
motion unless there was an abuse of discretion and we are "left
with a definite and firm conviction, after reviewing the whole
record, that the trial court erred in its ruling."  McGee v. McGee,
974 P.2d 983, 987 (Alaska 1999) (citation omitted).  But "whether
the trial court applied the appropriate legal standard in
exercising its broad discretion is a question of law regarding
which this court may substitute its independent judgment on
appeal."  Lowe v. Lowe, 817 P.2d 453, 456-57 (Alaska 1991)
(citation omitted).


Footnote 8:

     See O'Link v. O'Link, 632 P.2d 225, 228 (Alaska 1981).


Footnote 9:

     See Lowe, 817 P.2d at 456.  Alaska Civil Rule 60(b)
articulates several grounds by which the court may set aside a
final judgment:

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

               (2)  newly discovered evidence which by
due diligence could not have been discovered in time to move for a
new trial under Rule 59(b);

               (3)  fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party;

               (4)  the judgment is void;

               (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; or

               (6)  any other reason justifying relief
from the operation of the judgment.


Footnote 10:

     O'Link, 632 P.2d at 229.


Footnote 11:

     Id. at 229-30 (quoting 11 C. Wright & A. Miller, Federal
Practice and Procedure sec. 2864 (1973) (footnotes omitted)).


Footnote 12:

     Schofield v. Schofield, 777 P.2d 197, 202 (Alaska 1989).


Footnote 13:

     See Clauson v. Clauson, 831 P.2d 1257, 1260-61 (Alaska 1992).


Footnote 14:

     684 P.2d 869 (Alaska 1984).


Footnote 15:

     See id.


Footnote 16:

     We condemn such an obvious misuse of the dissolution process.


Footnote 17:

     See Schofield, 777 P.2d at 202.


Footnote 18:

     We review such denials for an abuse of discretion.  See Mack
v. Mack, 816 P.2d 197, 198 (Alaska 1991).  A trial court has abused
its discretion when a party has been "deprived of a substantial
right or seriously prejudiced by the lower court's ruling."  House
v. House, 779 P.2d 1204, 1206 (Alaska 1989) (citation omitted).  We
examine the particular facts and circumstances of each case to make
this determination.  See Siggelkow v. Siggelkow, 643 P.2d 985, 987
(Alaska 1982).


Footnote 19:

     643 P.2d 985 (Alaska 1982).


Footnote 20:

     Id. at 987 (citations and internal quotation marks omitted)
(first alteration in original).


Footnote 21:

     We will reverse a judge's refusal to disqualify himself only
if "patently unreasonable,"Long v. Long, 816 P.2d 145, 156 (Alaska
1991) (citation and internal quotation marks omitted), or if "a
fair-minded person could not rationally come to [the same]
conclusion on the basis of known facts."  Id. (quoting Blake v.
Gilbert, 702 P.2d 631, 642 (Alaska 1985)) (alteration in original). 
Where only the appearance of impartiality is involved, we require
the petitioner to make a "greater showing"for reversal.  Id.
(citation and internal quotation marks omitted).  We assess all the
facts and circumstances to determine whether "an abuse of sound

judicial discretion occurred."  Id. (citation omitted).


Footnote 22:

     Id. (quoting Alaska Trams Corp. v. Alaska Elec. Light & Power,
743 P.2d 350, 353 n.7 (Alaska 1987)).


Footnote 23:

     Judge Cutler also independently reviewed the case pursuant to
AS 22.20.020(c), which provides for review of a judge's decision
not to recuse him or herself, and denied the motion for
disqualification of Judge Ashman.


Footnote 24:

     A trial court's determination of what property is available
for distribution may involve both legal and factual questions.  See 
McGee v. McGee, 974 P.2d 983, 987 (Alaska 1999).  We review legal
questions de novo and factual findings for clear error.  See id. 
We reverse a trial court's determinations of the value of property
only if clearly erroneous.  See Lundquist v. Lundquist, 923 P.2d
42, 51 (Alaska 1996).  Finally, we reverse a trial court's decision
on the equitable allocation of property only if clearly unjust. 
See id. at 53.


Footnote 25:

     Lundquist, 923 P.2d at 46-47.


Footnote 26:

     See id. at 47.


Footnote 27:

     Hatten v. Hatten, 917 P.2d 667, 671 (Alaska 1996) (citing
Hanlon v. Hanlon, 871 P.2d 229, 231 (Alaska 1994)).


Footnote 28:

     In Wood v. Collins, 812 P.2d 951 (Alaska 1991), we explained
the proper approach for distributing property accumulated during a
non-marital cohabitation period, concluding that a court must
determine the express or implied intent of the parties with respect
to each item of property.  See id. at 956.


Footnote 29:

     See AS 25.24.160(a)(4); Rhodes v. Rhodes, 867 P.2d 802, 804
(Alaska 1994).


Footnote 30:

     794 P.2d 1346 (Alaska 1990).


Footnote 31:

     Id. at 1348.


Footnote 32:

     See Hatten v. Hatten, 917 P.2d 667, 672 (Alaska 1996).


Footnote 33:

     Bandow, 794 P.2d at 1347.


Footnote 34:

     A trial court's determination of imputed income is a factual
finding that we review under the clearly erroneous standard. 
See Dunn v. Dunn, 952 P.2d 268, 270 (Alaska 1998).  A trial court
may determine a parent's potential income when calculating child
support if the parent is voluntarily underemployed.  See Alaska R.
Civ. P. 90.3 cmt. III.C.  The court should consider "the parent's
work history, qualifications, and job opportunities."  Id.


Footnote 35:

     Tarie also claims that the trial court made no findings with
respect to Bob's salary or ability to pay child support.  But, in
accordance with the parties' agreement on custody and support, the
court ruled that child support would be set pursuant to Alaska
Civil Rule 90.3 and instructed the parties to file child support
guidelines affidavits with the court.  Bob filed such an affidavit
with the court, and Tarie stipulated to it.  Tarie cannot now argue
that the court erred when it made no findings on Bob's child
support obligation.