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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Juline Magden v. Alaska USA Federal Credit Union (11/23/2001) sp-5506

Juline Magden v. Alaska USA Federal Credit Union (11/23/2001) sp-5506

     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, e-mail corrections@appellate.courts.state.ak.us.


             THE SUPREME COURT OF THE STATE OF ALASKA


JULINE MAGDEN,                )    Supreme Court No. S-9314
                              )
               Appellant,     )    Superior Court No.
                              )    3AN-88-5182 CI
     v.                       )    
                              )
ALASKA USA FEDERAL CREDIT     )     O P I N I O N
UNION,                        )
                              )
               Appellee.      )    [No. 5506 - November 23, 2001]
______________________________)    


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

          Appearances:  Janet L. Bolvin, Anchorage, for
Appellant.  Marshall K. Coryell, Coryell & Associates, Anchorage,
for Appellee.

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

          BRYNER, Justice.


I.   INTRODUCTION
          Under Alaska Civil Rule 69(d)(1), a judgment creditor who
fails to obtain a writ of execution within five years after entry
of judgment must show "just and sufficient reasons" before execution
may issue.  In the present case, B. Juline Magden appeals a
superior court order allowing Alaska USA Federal Credit Union
(AUSA) to execute on a judgment that was entered against her more
than five years previously; Magden argues that AUSA failed to show
any fair and just reasons for its delay in seeking execution.  We
affirm, concluding that the record supports the superior court's
finding of a fair and just reason.  
II.  FACTS AND PROCEEDINGS
          On July 17, 1989, AUSA obtained a deficiency judgment
against Magden in the amount of $43,502.30 plus interest. [Fn. 1] 
AUSA sought to execute the judgment against Magden's income, but
she successfully moved to exempt her income from execution.  AUSA
also executed against Magden's permanent fund dividends (PFDs) in
1990 and 1991; when Magden was unsuccessful at exempting her
dividends from execution, she appealed to this court.  In September
1991, while Magden's appeal was pending, the parties signed a
settlement in which AUSA agreed not to execute against Magden's
PFDs in exchange for Magden dismissing her appeal.
          This settlement agreement also required Magden to provide
AUSA with copies of her federal income tax returns by August 15 of
each year.  If, according to her tax return, Magden's net taxable
income was less than $16,800 for the year, AUSA would not attempt
to execute against her PFDs. [Fn. 2]  However, if Magden's annual
net income exceeded $16,800, AUSA could execute against her PFD up
to the maximum amount allowed by law.  Further, the settlement
agreement permitted AUSA to execute on Magden's other assets: 
"Nothing contained in this agreement shall limit the right of
[AUSA] to execute on any other assets of [Magden].  This agreement
is settlement of the issues regarding execution against debtor's
Permanent Fund Dividend only." 
          Magden provided AUSA with copies of her income tax
returns for tax years 1991-1996, during which time Magden's annual
net income never exceeded $16,800.   When Magden did not provide
AUSA with a copy of her 1997 return by August 15, 1998, counsel for
AUSA sent her two separate letters requesting that she provide a
copy of her 1997 return.  Magden still refused to provide a copy of
her 1997 return, so AUSA moved for execution on the judgment in
June 1999.  Magden opposed AUSA's motion, contending that execution
was barred by AS 09.35.020, which provides that, absent "just and
sufficient reasons," no execution may issue when five years elapse
without execution after a judgment is entered. 
          Superior Court Judge Rene J. Gonzalez granted AUSA's
motion, finding that AUSA had "just and sufficient reasons" for
failing to obtain a writ of execution within five years.  Magden
moved for reconsideration; Judge Gonzalez denied this motion.
Magden appeals.
III. DISCUSSION
     A.   Standard of Review
          " 'We exercise our independent judgment when interpreting
and applying statutes of limitations.' " [Fn. 3]  In reviewing
motions for reconsideration, we will not overturn a trial court's
denial unless we find an abuse of discretion. [Fn. 4]
     B.   AUSA Set Forth "Just and Sufficient Reasons" for Failing
to Obtain a Writ of Execution Within Five Years After Judgment.
          The clerk of court entered AUSA's judgment against Magden
on July 17, 1989.  After entering the settlement agreement on
September 10, 1991, AUSA did not attempt to execute on the judgment
until June 23, 1999.  Alleging that AUSA lacked "just and
sufficient reasons for failure to obtain a writ of execution on the
judgment during the last eight years," Magden opposed AUSA's motion
for issuance on execution.  
          If a creditor fails to execute on a judgment within five
years of the judgment's entry date, the creditor must obtain court
approval before executing against the judgment under Alaska Rule of
Civil Procedure 69(d). [Fn. 5]  Alaska Statute 09.35.020 further
provides:
               When a period of five years has elapsed
after the entry of judgment and without an execution being issued
on the judgment, no execution may issue except by order of the
court in which judgment is entered.  The court shall grant the
motion if the court determines that there are just and sufficient
reasons for the failure to obtain the writ of execution within five
years after the entry of judgment.[ [Fn. 6]]
          In support of her argument that AUSA lacked "just and
sufficient reasons" for failing to execute against the judgment
within five years, Magden emphasized that AUSA did not attempt to
execute on the judgment, even though the settlement agreement
permitted AUSA to execute on Magden's other assets. 
          Judge Gonzalez determined that AUSA did, in fact, have
"just and sufficient reasons" for failing to obtain the writ of
execution within the five-year period.  Judge Gonzalez noted that
"[t]he credit union refrained from executing against Magden's
permanent fund dividend due to a settlement agreement; they were
prevented from executing against her regular income because she
successfully sought exemption; and beyond this, there were no
assets to execute against." [Fn. 7]  Even though AUSA was free to
execute against Magden's other assets, the superior court noted
that AUSA credit officers claimed that "Magden had no other assets
available for execution.  Magden does not dispute this.  Under the
circumstances, any attempt to execute against assets other than
Magden's permanent fund dividend would have been futile."
          On appeal, Magden argues that the superior court erred in
permitting AUSA to execute on a judgment that was over five years
old.  Magden urges us to find that the evidence that AUSA presented
"was insufficient in that [Magden's] taxable income and her
Permanent Fund dividend did not constitute the totality of her
assets and that AUSA failed to demonstrate any reason for failing
to execute on her remaining non-exempt assets during the period of
limitations."
          Our review of the record supports the superior court's
finding that AUSA had "just and sufficient reasons" for failing to
execute within five years of the judgment's entry. [Fn. 8]  Magden
offered no evidence in her opposition that she possessed any non-
exempt assets upon which AUSA could execute, [Fn. 9] and since AUSA
was precluded from executing against Magden's income or PFDs, any
attempts by AUSA to enforce the judgment would have been futile. 
We therefore affirm the superior court's granting of AUSA's motion
to execute after five years.
     C.   The Superior Court Did Not Abuse Its Discretion in
Denying Magden's Motion for Reconsideration.
          In her motion for reconsideration, Magden argued that
because AUSA performed no research to determine whether she had
other assets upon which it could execute, AUSA lacked "just and
sufficient reasons" for failing to execute on the judgment within
five years.  In an affidavit attached to her motion, Magden stated
that she had received over $25,000 from a child support payment in
1994, over $8,000 from the Social Security Division in 1995, and
over $30,000 from a deceased family member in 1996.   Since Magden
believed that none of these assets were taxable income, she did not
report these assets on her federal income tax return.  Moreover,
she did not disclose them to AUSA because AUSA asked "no questions."
          Judge Gonzalez denied Magden's motion for reconsideration
because Magden failed to show valid reasons warranting
reconsideration.  Responding to Magden's assertion that she
possessed other assets, Judge Gonzalez noted that "Magden did not
raise this issue in her original opposition, and a motion for
reconsideration may not be used as a means to seek an extension of
time for the presentation of additional evidence on the merits of
a claim." 
          Magden appeals the denial of her motion for
reconsideration, arguing that she did not present new evidence;
rather, she merely "amplified on her original assertion through her
identification of non-exempt assets in an affidavit."  She
maintains that the superior court overlooked the material fact that
she previously had alleged the existence of other assets upon which
AUSA could have executed its judgment.
          We agree with the superior court that Magden attempted to
use her motion for reconsideration as a method of presenting
additional evidence.  We have stated:             We refuse to allow a
motion for reconsideration to be used as a means to seek an
extension of time for the presentation of additional evidence on
the merits of the claim.  To do so would defeat the limited purpose
of Rule 77(k):  to remedy mistakes in judicial decision-making
where grounds exist, while recognizing the need for a fair and
efficient administration of justice.[ [Fn. 10]]
          Magden's affidavit on reconsideration did not merely
"amplify" her claim that she had assets upon which AUSA could
execute: her original pleadings never asserted the existence of
specific non-exempt assets.
          But even assuming that Magden only "amplified" her
original claim that she had assets upon which AUSA could execute,
this would not change our decision.  Although we do not know the
exact dates Magden received these additional assets, she stated
that she received a child support payment in 1994, a social
security payment in 1995, and an inheritance in 1996.  However, the
five-year time limit under which AUSA could execute on the judgment
without leave of the court expired in July 1994.  Thus, the monies
she received in 1995 and 1996 were outside the five-year window;
even if AUSA attempted to execute within five years of the date of
the judgment's entry, it would have been unsuccessful because
Magden did not possess these assets during that time.  And although
it is possible that Magden received the child support payment
before the time period expired, the payment may have been exempt
under AS 09.38.015. [Fn. 11]  The facts belie Magden's argument on
appeal that she possessed "readily identifiable non-exempt assets
available for execution during the five year period of limitations
specified in AS 09.35.020." 
          Because Magden's motion for reconsideration presented new
and additional evidence, and because such evidence would not
prevent a finding that AUSA had "just and sufficient reasons" for
declining to execute on the judgment within five years, we hold
that the superior court did not abuse its discretion in denying
Magden's motion for reconsideration.
IV.  CONCLUSION
          For the above reasons, we AFFIRM the superior court.


                            FOOTNOTES


Footnote 1:

     AUSA previously obtained a deficiency judgment against Magden
on March 31, 1989, in the amount of $76,222.33.  The judgment was
decreased to $43,502.30 after AUSA sold some of Magden's property
and applied the proceeds to the outstanding balance.


Footnote 2:

     AUSA arrived at the figure of $16,800 because debtors'
earnings up to $350 per week   or $16,800 per year   were
statutorily exempt.  See former AS 09.38.030 (1991). 


Footnote 3:

     Koss v. Koss, 981 P.2d 106, 106-07 (Alaska 1999) (quoting
McDowell v. State, 957 P.2d 965, 968 n.4 (Alaska 1998)).


Footnote 4:

     See, e.g., Neal & Co. v. Ass'n of Vill. Council Presidents
Reg'l Hous. Auth., 895 P.2d 497, 506 (Alaska 1995); Miller v.
McManus, 558 P.2d 891, 892 (Alaska 1977).


Footnote 5:

     Alaska Rule of Civil Procedure 69(d) provides, in relevant
part:     

               Execution After Five Years.  Whenever a
period of five years shall elapse without an execution being issued
on a judgment, no execution shall issue except on order of the
court in the following manner:

               (1)  The judgment creditor shall file a
motion supported by affidavit with the court where the judgment is
entered for leave to issue an execution.  The motion and affidavit
shall state the names of the parties to the judgment, the date of
its entry, the reasons for failure to obtain a writ for a period of
five years and the amount claimed to be due thereon or the
particular property of which possession was adjudged to the
judgment creditor remaining undelivered.


Footnote 6:

     AS 09.35.020 (emphasis added); see also State, Dep't of
Revenue, Child Support Enforcement Div. ex rel. Gause v. Gause, 967
P.2d 599, 601-02 (Alaska 1998) ("[A] judgment creditor who attempts
to execute a judgment after a lapse of five years must show good
cause for the delay;  however, the statute places no absolute time
limit on enforcement proceedings."); State, Dep't of Revenue, Child
Support Enforcement Div. ex rel. Inman v. Dean, 902 P.2d 1321, 1325
(Alaska 1995) ("In order to collect unpaid obligations that vested
more than five years before the current proceedings, execution will
not issue unless [the creditor] can show to the court's
satisfaction 'just and sufficient reasons for the failure to obtain
the writ of execution.' ") (quoting AS 09.35.020).


Footnote 7:

     Ms. Sharyn Clabaugh, a loan control officer at AUSA, explained
that "[t]he rationale for entering into the Settlement Agreement
was that, according to [AUSA's] information, [Magden] probably had
no assets that would not be exempt from execution.  The only
additional asset upon which plaintiff could execute would be the
earnings of [Magden]."  As a result, AUSA required Magden to
provide AUSA with copies of her federal income tax returns to
determine whether AUSA "had any basis for attempting execution
against the earnings of [Magden]." 


Footnote 8:

     We have stated that a creditor "may be able to demonstrate any
number of valid reasons supporting its decision to delay formal
execution."  Dean, 902 P.2d at 1325.


Footnote 9:

     In her opposition, Magden merely stated: "There was nothing in
the agreement that prevented [AUSA] from executing against
[Magden's] other assets . . . ."  Magden did not present evidence
that she indeed possessed assets subject to execution, identify any
such assets, or allege that her possession of such assets was
readily apparent to AUSA.


Footnote 10:

     Neal & Co. v. Ass'n of Vill. Council Presidents Reg'l Hous.
Auth., 895 P.2d 497, 506 (Alaska 1995).


Footnote 11:

     AS 09.38.015(b) provides that "[t]he right to benefits held by
the state on behalf of an individual that may become payable by
reason of disability, unemployment, or illness, amounts held in the
teachers', judicial, or public employees' retirement system, or in
the elected public officers' retirement system under former AS
39.37, and child support collections made by the child support
enforcement agency are exempt." (Emphasis added.); see also AS
09.38 for additional exemptions under the Alaska Exemptions Act.