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.
