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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sanders v. Barth (11/9/00) sp-5328

Sanders v. Barth (11/9/00) sp-5328

     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
                                 


MARLA SANDERS,                )
                              )    Supreme Court No. S-9184
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-97-8284 CI
                              )
GARY BARTH,                   )    O P I N I O N
                              )
             Appellee.        )    [No. 5328 - November 9, 2000]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                        Sen K. Tan, Judge.


          Appearances:  Allison E. Mendel, Penny
          Agallianos, Mendel & Associates, Anchorage,
for Appellant.  No appearance for Appellee.


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


          MATTHEWS, Chief Justice.



I.   INTRODUCTION
          Marla Sanders appeals the superior court's denial of
Civil Rule 82 attorney's fees in a child support action that
settled.  Marla claims that she was entitled to the fees as the
prevailing party to the litigation and that the superior court
erred in applying the divorce exception to Rule 82.  
          While we agree that it was error to apply the divorce
exception to a case that does not closely resemble a divorce
action, we nevertheless hold that any error was harmless because
the absence of any fees provision in the settlement agreement
precludes Marla from receiving Rule 82 attorney's fees.  We
therefore affirm the superior court's order denying Marla
attorney's fees.
II.  FACTS AND PROCEEDINGS
          Marla Sanders and Gary Barth lived together for
approximately nine months in 1986, during which time Marla became
pregnant.  Shortly after Gary moved out, Marla gave birth to their
child, Amanda.  In 1993 Gary was adjudicated the natural father of
Amanda in a judgment that declared he owed Amanda a duty of support
but did not state how much he was obligated to pay.
          On September 24, 1997, -- more than ten years after
Amanda's birth -- Marla filed a complaint for child support,
requesting back child support and a child support order.  Gary
denied liability for Amanda's back child support, arguing that
Amanda may have had another "legal father" who owed the child
support.  He also claimed that until she was contacted by the Child
Support Enforcement Division of the State of Alaska, Marla had
neither informed him of the existence of their child nor requested
child support on the child's behalf.  Lastly, Gary claimed that the
statute of limitations restricted the amount of back child support
Marla could receive.
          Marla moved for partial summary judgment, limited to the
issue of Gary's liability for child support.  The superior court
granted her motion, finding that Gary raised no genuine issues of
material fact regarding the fact that Gary is the father of Amanda. 
The court then set a trial date for resolving the amount of child
support owed. 
          At trial, Marla's counsel offered to discuss settlement
with Gary, who was now appearing pro se.  The parties adjourned to
the court's chambers and emerged with a settlement agreement,
agreeing that Gary would pay past child support of approximately
$100,000.00.
          Three weeks after final judgment and two months after the
settlement conference, Marla moved for attorney's fees under Rule
82.  The court denied the motion, finding that "[t]his case was
settled, there are no prevailing parties."  Marla then filed a
motion for reconsideration, arguing that settlement did not
preclude a finding that she was the "prevailing party" for purposes
of Rule 82.  The court denied the motion, ruling that Rule 82 did
not apply at all: "Any award of fees between unmarried individuals
should be governed by the standard used in divorce actions, based
on the relative economic standing of the parties.  No such relief
was sought here.  And I have no financial information on Ms.
Sanders."
          Marla appeals, requesting this court to reverse the
superior court's order and remand for a determination of prevailing
party status under Rule 82.
III. STANDARD OF REVIEW
          The determination of which statute or rule applies to an
award of attorney's fees is a question of law. [Fn. 1]  We review
questions of law de novo, adopting the rule of law that is most
persuasive in light of "policy, reason, and precedent." [Fn. 2] 
IV.  DISCUSSION
     A.   The Divorce Exception to Rule 82 Remains an Exception
Rather than a Rule and Should Be Limited to Cases That Closely
Resemble Divorce Actions.
          Civil Rule 82 authorizes awards of partial attorney's
fees to prevailing parties in most civil litigation. [Fn. 3]  The
purpose of the rule is to partially compensate the prevailing party
for her litigation expenses and to encourage settlement. [Fn. 4]  
          However, divorce cases represent a well-established
exception to this general rule. [Fn. 5]  Attorney's fees in divorce
cases are "based on the relative economic situations and earning
powers of the parties," rather than prevailing party status. [Fn.
6]  This rule ensures that "both spouses have the proper means to
litigate the divorce action on a fairly equal plane." [Fn. 7]  
          In Bergstrom v. Lindback, [Fn. 8] we extended the divorce
exception to quasi-divorce actions involving child custody and
support proceedings between unmarried couples.  Bergstrom involved
an unmarried couple who had lived together for fourteen years and
had two children together. [Fn. 9]  Shortly after they separated,
the mother brought an action for child support and custody. [Fn.
10]  The parties settled the custody dispute but litigated the
child support issue. [Fn. 11]  After trial, the superior court
found the mother the prevailing party and awarded her attorney's
fees pursuant to Rule 82. [Fn. 12]  We reversed the award of fees,
holding that the superior court should have awarded fees based on
the relative financial standing of the two parties. [Fn. 13] 
Because Bergstrom closely resembled a divorce action and involved
the kinds of custody and support issues that generally arise
following the break-up of a long term relationship, we reasoned
that the divorce exception to Rule 82 should apply. [Fn. 14]  We
also noted that the same public policy supporting the divorce
exception to divorce cases -- ensuring that parties can litigate
initial custody and support issues on a "fairly equal plane" --
supports applying the divorce exception to these kinds of quasi-
divorce actions. [Fn. 15] 
          But the divorce exception to Rule 82 should remain an
exception to the rule, not the rule itself.  If a case does not
closely resemble a divorce action or if it does not involve the
kinds of issues -- such as the initial determination of custody and
child support -- that generally arise in the immediate aftermath of
a long-term relationship break-up, the superior court should not
apply the divorce exception to the award of attorney's fees.  Thus,
in Rubright v. Arnold, a case involving a paternity and child
support dispute between an unmarried couple, we held that the
superior court properly applied Rule 82 to the award of attorney's
fees. [Fn. 16]  Rubright involved a couple who were not married to
each other and who never lived together. [Fn. 17]  Five years after
their affair produced a child, the mother brought a suit to
establish paternity and child support. [Fn. 18]  Reasoning that
this kind of dispute did not closely resemble a divorce action, and
that there existed minimal public policy reasons for applying the
divorce exception, we held that Rule 82 governed the award of
attorney's fees in that case. [Fn. 19] 
          Similarly, in B.J. v. J.D., we rejected the mother's
contention that the divorce exception should apply to a custody
dispute between her and her former boyfriend. [Fn. 20]  Noting that
the case took place more than three years after the relationship
broke up and that it was predicated on a previous motion for
custody that had been dismissed, we reasoned that the case
resembled a modification of custody more than it did an initial
motion for custody and that Alaska Statute 25.20.115, rather than
the divorce exception, should govern the award of attorney's fees.
[Fn. 21]
          Like Rubright and B.J., the facts and circumstances
surrounding the current case do not closely resemble a divorce
action.  Most quasi-divorce cases between unmarried couples occur
almost immediately after the break-up of the long-term relation-

ship.  They traditionally involve issues that inevitably arise
immediately after such a break-up -- such as custody, visitation,
child support, and property division.  Here, in contrast, the
parties are litigating child support issues more than ten years
after their relationship broke up.  Moreover, as Marla notes, this
case is "strictly about money"; it does not involve property
division, custody or visitation issues.  The divorce exception is
not intended to apply to every child support case between unmarried
couples.  It should be reserved for cases that closely resemble
divorce actions and for cases that involve disputes -- such as
disputes about custody or the initial division of property -- for
which it is of paramount importance that the parties be able to
litigate on a "fairly equal plane." [Fn. 22]  Because this case
resembles the paternity action in Rubright more than it does the
quasi-divorce action in Bergstrom, we hold that it was error to
apply the divorce exception to the award of attorney's fees. 
     B.   The Superior Court Properly Refused to Award Marla Rule
82 Attorney's Fees Because the Settlement Agreement Did Not Include
a Provision for Such an Award.
     
          Although we hold that it was error to apply the divorce
exception to this case, we nevertheless conclude that this error
was harmless because the nature of the settlement agreement
precludes Marla from receiving Rule 82 attorney's fees.
          We have repeatedly stated that the "better practice" for
parties negotiating settlement agreements is to negotiate the
question of attorney's fees directly -- either including a fees
provision in the settlement agreement or explicitly reserving the
issue for a later determination by the court. [Fn. 23]  We have
warned litigants that if they fail to address the issue of fees in
the settlement agreement, they may be precluded from claiming Rule
82 fees. [Fn. 24]  As we explained in Coleman v. Coleman:
          A settlement agreement is a contract, and we
are as leery of adding unnegotiated terms to it as to any other
contract.  An agreement's silence as to fees thus may be seen as a
meaningful part of the parties' overall bargain, which we should
not disturb.[ [Fn. 25]]

Similarly, a concurrence in an earlier case, Tobeluk v. Lind, [Fn.
26] urged the court to adopt a per se rule prohibiting Rule 82 fees
when the settlement agreement does not refer to attorney's fees: 
               A consent judgment is a contract which
the parties have chosen to make enforceable as a judgment.  I would
hold that no Rule 82 attorney's fees may be awarded following a
consent judgment, unless there is an agreement that they will be,
because doing so changes the contract of the parties.  Such a rule
would ensure that each party gets what he bargains for, would
eliminate uncertainty which could discourage settlements, and would
eliminate post-settlement litigation of the very controversy which
the settlement was meant to resolve.[ [Fn. 27]]
The facts of this case confirm the fairness of this rule.  It would
be inequitable to award Marla Rule 82 attorney's fees -- despite
her claimed status as the prevailing party [Fn. 28] -- in light of
the fact that Gary signed the settlement agreement with the
understanding that it represented the full and complete resolution
of all outstanding issues between the parties. 
          Marla points to Coleman, where the mother was able to
recover attorney's fees even though the settlement agreement did
not mention attorney's fees.  But Coleman is distinguishable from
the present case.  In Coleman, the mother's initial complaint
requested both custody and attorney's fees. [Fn. 29]  The father
was therefore on notice before the settlement negotiations that
there were two separate issues that needed to be resolved.  We
further reasoned:
          To a court drawing such an inference
          [regarding the parties' intent as to
attorney's fees], divorce cases and Rule 82 cases may well differ. 
Because we do not base fee awards in divorce cases on who prevails,
the two forms of relief that [the mother] sought -- custody and a
fee award based on [the father's] greater wealth -- were
independent.  There is no reason to presume that, in settling one,
she and [the father] meant to settle the other.[ [Fn. 30]]  
          Here, in contrast, there is every reason to presume that
the settlement agreement was intended to represent the final
resolution of all outstanding issues between the parties.  Unlike
the mother in Coleman, Marla never specifically requested
attorney's fees in her complaint.  Nor did she mention attorney's
fees before or during the settlement negotiations.  The final
settlement agreement does not mention attorney's fees nor is there
any indication that Gary -- who was acting pro se -- even knew that
attorney's fees were an issue in the case.  Indeed, Gary claimed in
his trial brief that if he knew that Marla intended to request
attorney's fees, he would not have signed the agreement.
          Under these circumstances, Marla's request for attorney's
fees appears to be a retroactive attempt to modify terms of an
agreement that has already been signed by the parties and accepted
by the superior court.  Allowing Marla to recover Rule 82
attorney's fees after she failed to notify Gary of her intent to
pursue these fees despite the settlement agreement would be
inequitable.  We therefore hold that the superior court properly
denied Marla's motion for Rule 82 attorney's fees.  To further
clarify this holding for future cases, we approve of the rule
articulated in the Tobeluk concurrence:  "No Rule 82 attorney's
fees may be awarded following a consent judgment unless there is an
agreement that they will be." [Fn. 31]
V.   CONCLUSION
          Because this case does not closely resemble a divorce
action, Rule 82 applies to the award of attorney's fees.  But
because this case settled without any reference to attorney's fees
and because the alleged prevailing party failed to notify the other
party of her intent to pursue Rule 82 attorney's fees in addition
to the terms negotiated in the settlement agreement, any award of
Rule 82 attorney's fees is barred.  We therefore AFFIRM the
superior court's decision to deny Marla's motion for Rule 82
attorney's fees. 


                            FOOTNOTES


Footnote 1:

     See B.J. v. J.D., 950 P.2d 113, 118 (Alaska 1997). 


Footnote 2:

     Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979). 


Footnote 3:

     See Moody-Herrera v. State, Dep't of Natural Resources, 967
P.2d 79, 89 (Alaska 1998).


Footnote 4:

     See id.


Footnote 5:

     See Hartland v. Hartland, 777 P.2d 636, 644 (Alaska 1989).


Footnote 6:

     Kowalski v. Kowalski, 806 P.2d 1368, 1372 (Alaska 1991). 


Footnote 7:

     Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1192 (Alaska 1987). 
The divorce exception to Rule 82 is based on a broad reading of AS
25.24.140(a)(1), which provides for attorney's fees during the
pendency of a divorce, and on the recognition that "there is often
no clear winner" in a divorce case.  Hilliker v. Hilliker, 768 P.2d
115, 116 (Alaska 1988).


Footnote 8:

     779 P.2d 1235 (Alaska 1989). 


Footnote 9:

     See id. at 1236.


Footnote 10:

     See id.


Footnote 11:

     See id.


Footnote 12:

     See id. 


Footnote 13:

     See id. at 1238.


Footnote 14:

     See id.


Footnote 15:

     See id.; see also Coleman v. Coleman, 968 P.2d 570, 573
(Alaska 1998) ("An award of attorney's fees in a case between
unmarried individuals limited to issues of child custody and
support is based on their relative economic situations and earning
powers.  This rule applies if the case is closely analogous to
custody disputes in divorce cases, as this one obviously was.")
(internal quotations and alterations omitted).


Footnote 16:

     973 P.2d 580, 586-87 (Alaska 1999). 


Footnote 17:

     See id. at 582.


Footnote 18:

     See id.


Footnote 19:

     See id. at 586-87.


Footnote 20:

     950 P.2d 113, 119 (Alaska 1997). 


Footnote 21:

     See id.


Footnote 22:

     Lone Wolf, 741 P.2d at 1192. 


Footnote 23:

     Tobeluk v. Lind, 589 P.2d 873, 879 n.13 (Alaska 1979); see
also Coleman, 968 P.2d at 576. 


Footnote 24:

     See Coleman, 968 P.2d at 576-77.


Footnote 25:

     Id. at 576.


Footnote 26:

     589 P.2d 873 (Alaska 1979).


Footnote 27:

     Id. at 881 (Matthews, J., concurring).


Footnote 28:

     Marla argues that the superior court erred by failing to
recognize her status as the prevailing party.  But this argument is
irrelevant.  Even if Marla is the prevailing party in the
litigation, she is nevertheless precluded from receiving attorney's
fees based on the settlement agreement's failure to provide
attorney's fees or to reserve the issue for a later judicial
determination. 


Footnote 29:

     See Coleman, 968 P.2d at 577.


Footnote 30:

     Id.


Footnote 31:

     Tobeluk, 589 P.2d at 881.