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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Juelfs v. Gough (2/15/2002) sp-5535

Juelfs v. Gough (2/15/2002) sp-5535

     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


JULIE A. (GOUGH) JUELFS,           )
                              )    Supreme Court No. S-9931
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    4FA-92-2175 CI
                              )
STEPHEN J. GOUGH,                       )    O P I N I O N
                              )
             Appellee.                  )    [No. 5535 - February
                              15, 2002]
________________________________)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks,
          Ralph  R.  Beistline and Charles R. Pengilly,
          Judges.

          Appearances:  Julie A. Juelfs, pro se,  North
          Pole.   Cory R. Borgeson, Borgeson  &  Burns,
          Fairbanks, for Appellee.

          Before:     Fabe,  Chief  Justice,  Matthews,
          Eastaugh, and Carpeneti, Justices.   [Bryner,
          Justice, not participating.]

          CARPENETI, Justice.

I.   INTRODUCTION

          I.   Arguing that "a pet is not just a thing but occupies a

special  place  somewhere in between a  person  and  a  piece  of

personal  property,"1 Julie A. Juelfs (formerly Gough) appeals  a

superior  court  ruling  modifying her  and  her  former  husband

Stephen J. Gough's dissolution agreement to grant sole custody of

their dog Coho to Stephen.  Julie also appeals the court's ruling

denying  her  a  change  of  judge and  requests  that  Stephen's

retirement benefits as well as attorney's fees be awarded to her.

Because the decision to modify the dissolution agreement to award

          Stephen full custody of Coho was within the superior court's

discretion, the decision to deny the motion for a change of judge

was not in error, and Julie's requests for the retirement account

and attorney's fees are unwarranted, we affirm the superior court

decision in all respects.

II.  FACTS AND PROCEEDINGS

          On  January  11,  1993, Superior Court Judge  Ralph  R.

Beistline signed a decree of dissolution between Stephen J. Gough

and  Julie A. Gough.  The matter had first been assigned to Judge

Beistline  on November 23, 1992.  The decree provided for  shared

ownership  of Stephen and Julie's dog Coho, a chocolate  Labrador

retriever.  The agreement also provided that Stephen would retain

$8,253 paid into Stephen's retirement account during the marriage

as well as the interest on that amount.

          On  March 28, 2000, Julie filed a motion requesting the

dissolution  agreement  be  reviewed  due  to  Stephen's  alleged

failure  to  allow  Julie her allotted time with  Coho.   Stephen

opposed  the  motion,  alleging that two other  dogs  at  Julie's

residence threatened Coho's life.  Furthermore, he alleged  that,

during   one  incident  when  the  dogs  were  fighting,  Julie's

boyfriend  separated  the  dogs  by  pulling  Coho's  leg,   thus

dislocating it at the elbow requiring Coho to be under  "constant

care  and  medication."  In her reply, Julie additionally  argued

that,  because  she did not request part of Stephen's  retirement

fund  as a part of the dissolution agreement, she should  now  be

awarded  the  $8,253 that accrued in it during the  marriage  and

that the interest earned on it be "consideration" for her portion

of medical bills Stephen paid on Coho's behalf.2

          Judge  Beistline issued his decision in the  matter  on

April 20, 2000.  In it, he awarded "legal and physical custody of

Coho"  to Stephen and allowed Julie "reasonable visitation rights

as  determined by" Stephen.  The order also stated  that  Stephen

would be responsible for all of Coho's medical bills.

          Julie  moved  to  review the order  on  May  22,  2000,

          claiming  Stephen was not providing her with reasonable

visitation.  Stephen opposed the motion, arguing it was  untimely

and   promising  to  provide  the  requisite  visitation.   Judge

Beistline  denied the motion, stating that the  motion  was  both

untimely and failed on its merits.

          In   September  2000,  the  parties  sought  reciprocal

restraining  orders  against each  other  as  the  result  of  an

altercation  between them that occurred when  Stephen  sought  to

regain custody of Coho after Julie had taken the dog for a  visit

without Stephen's permission.  Julie then filed a request  for  a

hearing to review the custody settlement.  On September 19, 2000,

Judge  Beistline  ruled  that although  the  court  had  remained

hopeful  that "some type of visitation could still occur  between

Ms.  Gough  and  Coho" it has not worked.  Therefore,  the  court

found  that  Julie and Stephen should no longer have any  contact

whatsoever.   The  court  also  reaffirmed  its  previous  ruling

granting  custody of Coho to Stephen stating, "Ms. Gough  has  no

rights  whatsoever to Coho and may not demand visitation or  take

the  dog  from  Mr. Gough."  The court then imposed  a  six-month

restraining  order prohibiting the parties from  contacting  each

other except through counsel.

          Julie filed a change of judge request form in September

2000.   This  request  was denied as the "[c]ourt  ha[d]  already

rendered  its  decision in the matter" making  it  "too  late  to

change Judge."

          In October 2000, Julie moved for a change in custody of

Coho,  requesting  physical custody  of  Coho  on  weekends  from

Saturday at eight o'clock a.m. until Sunday at eight o'clock p.m.

At  the  same time Julie also filed a request for reconsideration

of  her request for a change of judge.  Judge Beistline responded

to  Julie's  request as well as other concerns  regarding  Coho's

custody on October 23, 2000.  In his order he stated that it

          is  inappropriate  [to] wait  until  after  a

          judge makes a ruling to determine whether  or

          not he or she likes the judge.  Nevertheless,

          in  an  abundance of caution, the Court  will

          refer  this matter to another Superior  Court

          judge  to review the issue of whether another

          judge  should  be  appointed  to  hear   this

          matter.

Judge  Beistline also reaffirmed his previous ruling that Stephen

had  full physical and legal custody of Coho and that he did  not

need to consult Julie prior to making any medical decisions.

          The  matter  was then assigned to Superior Court  Judge

Charles  R.  Pengilly for review.  Judge Pengilly  found  Julie's

request for a new judge "properly rejected . . . as untimely" and

that it was "apparent that Ms. Juelfs is simply unhappy with  the

outcome,  which  does not and cannot justify disqualification  of

the judge who decided the case."

          Julie now appeals.

III. STANDARDS OF REVIEW

          I.   "We will not disturb a trial court's ruling on a Rule 60(b)

motion unless an abuse of discretion is demonstrated."3  An abuse

of  discretion occurs when we are " `left with the  definite  and

firm  conviction on the whole record that the judge  had  made  a

mistake. . . .' "4

          Only  where a judge's refusal to disqualify himself  or

herself is patently unreasonable will we reverse.5

IV.  DISCUSSION

     A.   The  Trial  Court  Did  Not  Abuse  its  Discretion  in

          Modifying the Property Settlement.

          Julie   contends  that  Judge  Beistline   abused   his

discretion   in  modifying  the  property  settlement.    Stephen

responds that Julie has failed to adequately brief the issue  and

that the court properly modified the settlement.

          1.   Julie has sufficiently briefed the issue.

          Stephen  contends that, although Julie  contests  Judge

Beistline's  authority to modify the property settlement  in  her

          points of appeal, she fails to make the argument in her brief,

thereby waiving the issue.

          Although  cursory briefing of an issue is a  sufficient

reason  to  disregard a point on appeal, regardless of a  party's

pro  se status,6 Julie's briefing is adequate.  She contests  the

superior  court's  ability  to modify  the  property  settlement.

Although she does not explicitly make this argument, she does  so

implicitly  and  in a manner that we can easily review.   Stephen

accurately   perceives  her  argument   and   responds   to   it.

Accordingly,  he is not prejudiced.7  In these circumstances,  we

decline  to find that the issue is waived on the basis of cursory

briefing.

          2.   Property settlements incorporated into divorce decrees are

               final judgments.

          The   custody  of  Coho  is  a  part  of  the  property

settlement agreed upon between the parties and incorporated  into

the  divorce  decree.  This fact, overlooked by both parties,  is

important  because "[a] property division incorporated  within  a

divorce decree is a final judgment and is modifiable to the  same

extent  as  any  equitable  decree of  the  court."8   Thus,  the

judgment  that custody of Coho would be shared is final  and  can

only be modified under Alaska Rule of Civil Procedure 60(b).9

          3.   Rule 60(b)10

          1.   1.   Upon hearing Julie's motion to enforce the property

settlement  as  to Coho, Judge Beistline decided that  Julie  and

Stephen  should no longer share custody of the dog.  He therefore

awarded  custody  of Coho to Stephen.  Because  the  modification

does  not fall under the parameters of Civil Rule 60(b)(1)-(5),11

we  consider  whether the modification could be  justified  under

Civil Rule 60(b)(6), the "catch-all" provision.12

          "A  party can invoke subsection (b)(6) only if none  of

the  other  five  clauses apply and `extraordinary circumstances'

exist."13    "[I]n  deciding  Rule  60(b)(6)  motions   we   give

consideration to the following factors: the prejudice, if any, to

          the non-moving party if relief from judgment is granted, whether

any   intervening   equities  make   the   granting   of   relief

inappropriate,   and   any   other  circumstances   relevant   to

consideration  of the equities of the case."14  We thus  "balance

the interest in the finality of judgments against the interest in

granting  relief from judgment when justice so requires."15   The

last  requirement of a motion under Rule 60(b) is that it be made

within a "reasonable time."16

          Unlike Rule 60(b)(3) fraud, which can be brought by the

court at any time,17 subsection (6) requires a motion be made  by

one  of  the  parties.  The rule states that "the  procedure  for

obtaining  any  relief  from a judgment shall  be  by  motion  as

prescribed  in  these rules or by an independent  action."18   We

construe  Stephen's  opposition  to  Julie's  motion  as  such  a

request.   In  his  opposition Stephen contends that  the  "joint

sharing  agreement of a dog warrants review by  the  Court."   He

goes  on to state that it is "in the best interests of Coho  that

the property settlement agreement provide that Coho be awarded to

Steve  Gough  solely."  Such language is enough  to  warrant  the

trial  court's  action.  Although there is  an  interest  in  the

finality of judgments, it is clear the judgment would never  have

been  final  under the circumstances that faced the  court.   The

arrangement between Julie and Stephen assumed a state  of  facts,

namely,  cooperation  between them, that  proved  not  to  exist,

requiring judicial intervention.  As Judge Beistline aptly noted,

the  arrangement  between  Julie and  Stephen  was  not  working:

"[T]he  parties  were  unable to share custody  of  Coho  without

severe contention."

     B.   Judge Beistline Did Not Err in Denying Julie's Request for a

          Change of Judge.

          Julie claims Judge Beistline committed error by failing

to  properly address her request for a change of judge and by not

consulting Standing Master MaryAlice Closuit, the special  master

who  presided over the original dissolution proceeding.   Stephen

          argues in response that Julie's request was correctly denied as

untimely.

          "Failure  to file a timely notice precludes  change  of

judge  as a matter of right.  Notice of change of judge is timely

if  filed  before the commencement of trial and within five  days

after  notice  that  the  case has been assigned  to  a  specific

judge."19

          Julie  filed  her  request for a  change  of  judge  on

September  22,  2000.   Judge  Beistline  signed  the  decree  of

dissolution of marriage in this matter on January 11, 1993.  Over

seven  years  passed  after Judge Beistline's  assignment  before

Julie  requested  a change of judge.  Rule 42(c)(3)  precludes  a

change of judge as a matter of right in these circumstances.20

          Even  so, Judge Beistline still referred the matter  to

another  superior  court  judge for review.   After  review,  the

second  judge concurred that the request was untimely.  There  is

no   basis   to   find   Judge  Beistline's   decision   patently

unreasonable.   As  in  Lacher  v. Lacher,  Julie's  argument  is

"little more than an expression of [her] dissatisfaction with the

superior court's ruling."21

     C.   Julie   Is   Not  Entitled  to  Money  from   Stephen's

          Retirement Account Distributed in the Original Property

          Settlement.

          Julie   claims  that  in  light  of  the  change  Judge

Beistline  made  to  the  original  dissolution  decree,  she  is

entitled to $10,967 ($8,253 in Stephen's retirement account  plus

interest  of $2,714) that she claims should have been awarded  to

her at the time of the dissolution.  Julie also requests interest

on  this amount from January 11, 1993.  Stephen argues the  issue

should  not be considered because Julie failed to raise it before

the superior court.

          The  money Julie requests was awarded to Stephen  as  a

part  of  the property settlement and was incorporated  into  the

dissolution  decree.  It is therefore a final judgment  that  can

          only be changed or modified through the use of Civil Rule 60(b).22

          Julie  did  not  bring  a  Rule  60(b)  motion,  either

explicitly  or  implicitly, in the superior court.   She  is  not

entitled to raise this issue for the first time on appeal.23

     D.   Julie Is Not Entitled to an Award of Attorney's Fees.

          Julie  requests "half the expenses paid  to  [Stephen's

law  firm] for [her] legal work in this matter."  Stephen  argues

in response that this issue was not raised in the lower court and

should therefore not be considered first by this court on appeal.

          In  Alaska Federal Savings & Loan Ass'n of  Juneau

v. Bernhardt,24 we considered the question of whether pro se

litigants   were  entitled  to  attorney's  fees.25    After

considering policy reasons for and against26 such awards  we

concluded the reasoning against allowing pro se litigants to

recover  fees  was  more  persuasive.27   We  have  recently

affirmed  this conclusion in Shearer v. Mundt.28  Julie  has

provided  no  reason  for us to depart from  this  approach.

Accordingly, we deny Julie's request for fees.

V.   CONCLUSION

          The superior court did not abuse its discretion in
modifying  the property settlement incorporated  into  Julie
and  Stephen's  dissolution  decree  in  awarding  Coho   to
Stephen.  The superior court did not err in denying  Julie's
untimely  request for a change of judge.  Finally, Julie  is
not entitled to any portion of Stephen's retirement account,
which was previously distributed in the original settlement,
or  to an award of attorney's fees.  We therefore AFFIRM the
superior court's ruling in all respects.29
_______________________________
     1    Morgan v. Kroupa, 702 A.2d 630, 633 (Vt. 1997).

     2     Julie,  however, disputes that she  owes  this  money,
having  never  been consulted regarding any of  Coho's  treatment
paid for by Stephen.

     3    Morris v. Morris, 908 P.2d 425, 427 (Alaska 1995).

     4     Farrell v. Dome Labs., 650 P.2d 380, 384 (Alaska 1982)
(quoting  Gravel  v. Alaskan Village, Inc.,  423  P.2d  273,  277
(Alaska 1967) (footnote omitted)).

     5    Long v. Long, 816 P.2d 145, 156 (Alaska 1991).

     6    A.H. v. W.P., 896 P.2d 240, 243 (Alaska 1995).

     7     See  Wilkerson  v.  State, Dep't of  Health  and  Soc.
Servs.,  Div.  of Family and Youth, 993 P.2d 1018,  1022  (Alaska
1999)  (allowing cursory argumentation where argument's "essence"
was easily discerned from the briefs).

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

     9     Lowe  v. Lowe, 817 P.2d 453, 456 (Alaska 1991) (noting
that  although  AS  25.24.160(a) allows  a  court  to  adjudicate
property  rights, it "does not authorize a court  to  dispose  of
assets  on  a  piecemeal basis where . . . the parties'  property
rights have been purportedly adjudicated and incorporated into  a
final  judgment."  Thus, "relief may be granted only  within  the
parameters of Civil Rule 60(b).").

     10    Alaska R. Civ. P. 60(b) states:

               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:
               (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.

               The  motion  shall  be  made  within   a
          reasonable time, and for reasons (1), (2) and
          (3) not more than one year after the date  of
          notice  of the judgment or orders as  defined
          in  Civil Rule 58.1(c).  A motion under  this
          subdivision (b) does not affect the  finality
          of a judgment or suspend its operation.  This
          rule  does not limit the power of a court  to
          entertain an independent action to relieve  a
          party  from  a judgment, order or proceeding,
          or   to  grant  relief  to  a  defendant  not
          personally served, or to set aside a judgment
          for  fraud  upon the court.  Writs  of  coram
          nobis,  coram  vobis and audita  querela  are
          abolished,  and the procedure  for  obtaining
          any relief from a judgment shall be by motion
          as   prescribed  in  these  rules  or  by  an
          independent action.
          
     11     Rule  60(b)(1)  is usually applied  to  cover  events
occurring prior to entry of
the  judgment  and  not those that post-date it.   See  McGee  v.
McGee, 974 P.2d 983, 989 (Alaska 1999). The events at issue  here
occurred  after Julie and Stephen's divorce decree  was  entered.
Therefore,  Rule  60(b)(1) is inapplicable.   Subsections  (b)(1)
through  (3)  are also inapplicable because there is  a  one-year
time limitation for motions brought under them that courts do not
have  the  power  to  enlarge.  See  O'Link,  632  P.2d  at  229.
Subsections  (3)  through  (5) are also inapplicable  as  neither
party  alleges  facts  that would bring  this  case  under  those
subsections.

     12    "Rule 60(b)(6) is, after all, a catch-all provision and
`should  be  liberally  construed  to  enable  courts  to  vacate
judgments   whenever  such  action  is  necessary  to  accomplish
justice.' " Clauson v. Clauson, 831 P.2d 1257, 1261 (Alaska 1992)
(emphasis in original) (quoting O'Link, 632 P.2d at 230).

     13     Lacher  v.  Lacher, 993 P.2d 413, 419  (Alaska  1999)
(citing O'Link, 632 P.2d at 229).

     14     Norman v. Nichiro Gyogyo Kaisha, Ltd., 761 P.2d  713,
717 (Alaska 1988).

     15    Id.

     16    Lowe v. Lowe, 817 P.2d 453, 459 (Alaska 1991).

     17     See, e.g., Higgins v. Municipality of Anchorage,  810
P.2d  149,  154  (Alaska  1991) (noting  "Civil  Rule  60,  which
provides  for  relief  from judgment, specifically  authorizes  a
court  `to  set  aside a judgment for fraud upon the  court.'  ")
(quoting Alaska R. Civ. P. 60(b)); Livingston v. Livingston,  572
P.2d 79 (Alaska 1977).

     18    Alaska R. Civ. P. 60(b)(6).

     19    Alaska R. Civ. P. 42(c)(3).

     20     See,  e.g.,  Musser v. Johnson, 914 P.2d  1241,  1243
(Alaska  1996)  (finding  six-month delay between assignment  and
request precluded change as a matter of right).

     21    993 P.2d 413, 421 (Alaska 1999).

     22    Allen v. Allen, 645 P.2d 774, 776 (Alaska 1982) (noting
the  "court  has  no inherent equitable power to modify  property
rights  that are part of a final decree.  Rather, the  provisions
of  a decree adjudicating property rights are modifiable only  to
the  extent  that  relief may be obtained from  any  other  final
judgment.").

     23     Pierce  v.  Pierce, 949 P.2d 498, 501  (Alaska  1997)
(holding  that  issue  not raised in trial court  was  barred  on
appeal because of prejudice to opposing party).

     24    794 P.2d 579 (Alaska 1990).

     25    Id. at 581-82.

     26     Reasons  against awarding pro se litigants  fees
include:

          (1)   the  difficulty  in  valuing   the
          non-attorney's  time  spent   performing
          legal  services, i.e.,  the  problem  of
          overcompensating  pro se  litigants  for
          "excessive hours [spent] thrashing about
          on   uncomplicated  matters,"  (2)   the
          danger  of encouraging frivolous filings
          by  pro  se  litigants  and  creating  a
          "cottage industry" for non-lawyers,  (3)
          our  view  that the express language  of
          Civil   Rule  82  specifying  "attorneys
          fees"  is  not easily susceptible  to  a
          construction    allowing    awards    to
          non-attorneys,  and  (4)  the   argument
          that,  in cases where a litigant  incurs
          no  actual fees, the award amounts to  a
          penalty  to  the  losing  party  and   a
          windfall to the prevailing one.
          
Pratt & Whitney Canada, Inc. v. Sheehan, 852 P.2d 1173, 1181
n.12 (Alaska 1993) (citing Alaska Fed. Sav. & Loan Ass'n  of
Juneau, 794 P.2d at 581).

     27    Alaska Fed. Sav. & Loan Ass'n of Juneau, 794 P.2d
at 581-82.

     28     ___ P.3d ___, Op. No. 9224 (Alaska, December 14,
2001).

     29    Julie's last contention is that she is entitled to
reversal  because when she approached Stephen's counsel,  he
stated  he  would  not deal with her as a pro  se  litigant.
Because  she  made no mention of the matter in the  superior
court,  she  may  not raise it now for  the  first  time  on
appeal.  Pierce, 949 P.2d at 500-01.