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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Harris v. Westfall (04/30/2004) sp-5804

Harris v. Westfall (04/30/2004) sp-5804

     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
                                

JULIA MARIE HARRIS,           )
                              )    Supreme Court No. S-10819
             Appellant,            )
                               )     Superior  Court No.  3AN-00-
11305 CI
     v.                       )
                              )    O P I N I O N
STEVEN J. WESTFALL,           )
                              )    [No. 5804 - April 30, 2004]
             Appellee.             )
________________________________)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:  Robin A. Taylor, Law Office  of
          Robin  A.  Taylor, Anchorage, for  Appellant.
          No appearance by or for Appellee.

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

          EASTAUGH, Justice.

I.   INTRODUCTION

           Was  it  an abuse of discretion to deny Julia Harris's

Alaska Civil Rule 60(b) motion to set aside a child support order

that   awarded  child  support  against  her?   Unrebutted  facts

described  in  Harris's supporting affidavit and  her  attorney's

memorandum established that (1) the child support order  proposed

by  the  other parent and adopted by the court contained material

misrepresentations,  and  (2)  Harris  inadvertently  failed   to

realize  that  her meritorious objections to the  proposed  child

support order had not been filed.  We therefore vacate the  child

support order and remand.

II.  FACTS AND PROCEEDINGS

           Julia  Marie  Harris and Steven J.  Westfall  are  the

parents  of  Cayla Marie Westfall, born in October 1993.   Harris

and  Westfall never married.  Their relationship deteriorated and

in  2000  Westfall  filed a complaint seeking custody  of  Cayla.

Harris counterclaimed for custody.  Each party was represented by

counsel.

           The  parties and their attorneys attended a settlement

conference on May 22, 2001, and reached agreement on custody  and

visitation  issues.   Superior Court  Judge  Peter  A.  Michalski

conducted  the  conference; in the presence of  the  parties  and

their  attorneys  he placed the terms of the  settlement  on  the

record.    Westfall's   attorney   prepared   a   written   order

corresponding to the terms orally agreed upon at the  conference.

The  court  entered  the written order approving  the  settlement

agreement on June 7, 2001.  The June 7 order contained a specific

custody  and visitation schedule.  It stated, among other things,

that "Steven Westfall will have primary physical custody of Cayla

from  the Sunday of the last full week before school starts until

the day after school is let out for the school year."  Harris was

to  have  custody over the summer.  The order specified a liberal

visitation schedule.

           The order also stated that "[a]ny child support issues

will  be  handled under Alaska R. Civ. P. 90.3.  The  Court  will

make findings concerning the waiver of child support."  This term

of  the  order corresponded to the discussion at the  conference,

where the court stated, "The court will make findings prepared by

parties  relating  to the waiver as to child support.   That  was

what I understood to be part of the agreement in this case."

           On December 12, 2001, about six months after entry  of

the  June  7 order approving the settlement agreement, Westfall's

attorney  filed a proposed child support order that  stated  that

Cayla  "shall reside primarily" with Westfall, that Harris "shall

have physical custody less than 30% of the year," and that Harris

"shall  pay  child support" of $189.75 per month.  This  proposed

order was not supported with any showing of changed circumstances

since entry of the June 7 order.

          Through her attorney, Harris attempted to object to the

proposed  child  support  order.  Her  written  objections  dated

December  17,  2001  stated that the parties had  "stipulated  in

court  to entry of an order for no child support, based upon  the

disability of [Harris] and the shared custody arrangement."   Her

objections  also  noted that "[e]ven if there were  to  be  child

support, the plaintiff and defendant have shared custody . . . ."

Her  objections further stated that Westfall had  never  filed  a

child support guidelines affidavit or provided his payroll stubs,

and that consequently a joint calculation could not be performed.

Her   objections  further  noted  that  based  on  the  available

financial  information  and because the parties  shared  custody,

Westfall,  and not Harris, would have to pay child  support,  and

that his obligation would be about $275 per month.

           On December 27, about ten days after Harris's attorney

prepared  these  objections, the court entered, without  changes,

the  child  support order proposed by Westfall  on  December  12,

2001.   The order thus stated that Westfall had primary  physical

custody  of  the child for support purposes and that  Harris  had

physical  custody  less  than thirty  percent  of  the  year;  it

required her to pay monthly child support of $189.75.  The  court

apparently assumed the proposed order was unopposed.  The court's

file,  as  of  December 27, did not contain Harris's December  17

objections.

           On  May  31, 2002, Harris, through counsel,  filed  an

Alaska Civil Rule 60(b) motion to set aside the December 27, 2001

child  support order.  The motion papers, supported  by  Harris's

affidavit  and the factual representations made in her attorney's

memorandum,  stated  that  in  December  2001  and  January  2002

Harris's attorney "had a secretary who was sabotaging the  office

and  numerous cases."  The supporting memorandum asserted that  a

copy  of  Harris's  December 17, 2001  objections  to  Westfall's

proposed  child support order was attached.  Because it  appeared

that  her  December  17 objections had never been  filed,  Harris

asked the court to consider those objections and to set aside the

child  support order.  Her Rule 60(b) motion papers  argued  that

Westfall  "[a]stoundingly"  had  submitted  the  proposed   child

support  order that (1) required Harris to pay child support  and

(2) stated "that [Westfall] has sole custody of the child."1  The

motion  papers further noted that Westfall had resisted a  shared

custody  arrangement  because, as a result of  Harris's  physical

disability,  Westfall  would  have been  required  to  pay  child

support.   The Rule 60(b) motion papers stated that  the  parties

had consequently agreed to waive child support.

           Harris's  motion papers also asserted  that  counsel's

secretary had hidden the signed child support order from Harris's

attorney;  that the Child Support Enforcement Division eventually

began  enforcing  the  child support order against  Harris;  that

Harris  then  contacted  her attorney, who  contacted  Westfall's

counsel;  and that the parties' attorneys then exchanged letters.

Harris  attached the letters to her motion.  We set them  out  in

footnote.2

           Westfall opposed Harris's Rule 60(b) motion on several

grounds.   His  opposition memorandum argued that  the  delay  in

requesting relief after Harris discovered "the problem" in  early

February  made  her motion untimely, although his opposition  did

not  dispute  the assertions of Harris's attorney  that  she  had

attempted  to file timely objections to the proposed  order,  and

that  her  secretary had failed to do so and then  concealed  the

order  as  entered.  In response to Harris's contention that  the

child  support order was "completely contrary to the order issued

by  the  court," Westfall's opposition contended that his  lawyer

was  "unaware  of  any other order pertaining  to  child  support

issued  by  the  court."   The  opposition  also  asserted   that

Westfall's  attorney had prepared the order "at  the  request  of

Judge  Michalski's chambers after Ms. Taylor's office  failed  to

file  it for some 5-plus months."  It also contended that it  was

Westfall who had agreed "to waive back child support" owed to him

by  Harris, and that the parties could not waive all future child

support, as Harris's motion contended they had, at the settlement

conference.   The  opposition also disputed  Harris's  contention

that  Westfall had incorrectly taken the position  that  he  "has

sole physical custody of the child."  In this regard, it argued:

          Mr.  Westfall directs this court's  attention
          to  Exhibit  C, p. 1 attached to  Defendant's
          motion.   Paragraph 2 states "Steven Westfall
          shall have primary physical custody of Cayla.
          .  .".  Again, this paragraph was reviewed in
          great detail at the hearing on settlement and
          Ms. Harris did not object to it.  It makes no
          sense  to  argue that Mr. Westfall  only  has
          primary  physical custody during  the  school
          year.   He  has  physical  custody  of  Cayla
          during  the  school year and 2 weeks  in  the
          summer.   He has primary custody of  her  all
          year.
          
It  also  contended that "[u]nder the rule," overnight visitation

that  began  on  Friday and ended at 2:30 p.m. on  Sunday  "would

still be counted as only one overnight visit."

           Finally,  the  opposition  took  issue  with  Harris's

assertion  that  the  support  order  had  been  issued  "due  to

misrepresentation  by an adverse party."  The  opposition  stated

that "undersigned counsel takes serious offense to that statement

and  asks  the  court  to address it.  This  allegation  is  both

unprofessional and unsupported in any way and should be  stricken

by  the  court  . . . ."  The opposition requested  an  award  of

attorney's fees under Alaska Rule of Civil Procedure 11, asserted

that his attorney had spent 3.2 hours addressing the motion,  and

sought  $560, based on an hourly rate of $175.  The affidavit  of

Westfall's  attorney supported the request for  attorney's  fees.

That  affidavit addressed only the attorney's fees incurred,  and

did  not  attempt  to  rebut  any  facts  described  in  Harris's

affidavit  or her attorney's memorandum.  It provided no  factual

support  for the arguments Westfall advanced in opposing Harris's

Rule 60(b) motion to set aside the child support order.  No other

affidavit was offered by Westfall.

           The  superior court denied Harris's Rule 60(b)  motion

without explanation and awarded Westfall attorney's fees of $250.

It then denied Harris's clarification motion.

           We  note that Harris's excerpts of record contain  the

objections  dated December 17, 2001, but that the  actual  record

does  not  contain  a  copy  of the  objections.   They  are  not

presently attached to the papers supporting the May 31, 2002 Rule

60(b)  motion.   As  found  in Harris's excerpt,  the  objections

appear  to bear a "12-17-01" certificate of service on Westfall's

lawyer.   Harris's lawyer seems to have signed this  certificate.

In  opposing  the  motion for relief, Westfall's  attorney  never

asserted  that  the  objections had not been  served  on  him  in

December, never contended that Harris had not attempted to object

to the proposed support order, and never contended that the court

could not consider Harris's intended objections on a theory  they

were  not  attached  to the Rule 60(b) motion  papers.   Harris's

opening  and  reply  memoranda supporting her Rule  60(b)  motion

discussed  the substance of the December 17 objections,  and  the

order  denying Rule 60(b) relief did not find that Harris  failed

to  submit  the  objections  with  her  Rule  60(b)  motion.   We

therefore  assume that the superior court, when  considering  the

Rule  60(b)  motion,  was  aware of  the  substance  of  Harris's

intended objections to the proposed support order.

           Harris appeals (1) the entry of the December 27,  2001

child support order, (2) the failure to require Westfall to  file

a  child  support  guidelines affidavit, and  (3)  the  award  of

attorney's  fees  against Harris.  No attorney has  appeared  for

Westfall on appeal, and Westfall has filed no brief with us.



III. DISCUSSION

     A.   Standard of Review

          We review fact findings for clear error.3  We review an

award  of  child support for an abuse of discretion, but exercise

our  independent judgment as to claims that the court applied  an

incorrect  legal  standard.4  We review for abuse  of  discretion

orders denying Rule 60(b) motions for relief from judgment.5

     B.   Application of Alaska Civil Rule 60(b)

          1.   Timeliness

          Harris filed her motion for relief under Rule 60(b)(1),

(3),  and  (6)  on May 31, 2002, slightly more than  five  months

after  the  superior court entered the December  27,  2001  child

support  order.  The order was distributed on December 28.   Rule

60(b)  provides  that a motion to set aside a judgment  or  order

"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 . . . orders."

            The   affidavit   of   Harris  and   the   memorandum

representations  of her attorney  addressed and  established  the

reasonableness  of the delay.  Harris's attorney  discovered  her

secretary's  deceit in February 2002.  Certainly the delay  until

discovery   was  understandable  and  reasonable,  as  Westfall's

superior  court  opposition seemed to tacitly  concede.   In  the

superior court, Westfall's attorney argued primarily that it  was

unreasonable  for  Harris not to move for  relief  more  promptly

after she learned of the secretary's deceit.

           But  the unrebutted circumstances described by  Harris

and  her attorney convince us that there was no legitimate  basis

for  concluding that Harris delayed unduly in moving for  relief.

The  memorandum Harris's attorney signed recites the efforts  she

made  to  convince  Westfall's  attorney  to  correct  the  order

substantively  and  to  permit the court to  revisit  the  issue.

Harris's affidavit recounted a conversation she had with Westfall

in  which  Westfall acknowledged, apparently in April 2002,  that

the  entry of an order requiring Harris to pay child support "was

a mistake."

          He knew this was wrong and said he would have
          his lawyer fix it.  He and I counted the days
          of  custody  in the order and  he  agreed  he
          doesn't have primary custody, it is close  to
          50/50  because I have Cayla in the summer,  3
          weekends per month, Spring Break and every in-
          service day.
          
Harris  also stated in her affidavit that "[Westfall]  called  me

back  and said his lawyer wouldn't do it and advised him  not  to

cooperate with me in fixing it."  She also stated that in May she

talked to Westfall and that "he again agreed this order is  wrong

but said his lawyer told him not to fix it."

          Among other things, Harris's attorney attempted to take

Westfall's  deposition and served him with  a  subpoena  in  late

March  for  a May 1 deposition.  Westfall refused to  attend  the

deposition.

           These unrebutted circumstances establish that the Rule

60(b)  motion  was  timely.   What  constitutes  reasonable  time

necessarily depends on the facts in each case.6  Courts  consider

whether the party opposing the motion has been prejudiced by  the

delay  in  seeking relief and whether the moving party  had  some

good  reason  for  failing  to act  sooner.7   Westfall  did  not

demonstrate  that he was prejudiced by the passage of  time,  and

Harris  demonstrated  good  reasons for  not  moving  for  relief

sooner.8

          Reasonable persons could not conclude on the undisputed

record  before us that Harris did not move for relief  "within  a

reasonable time."

          2.   Misrepresentation

          Rule 60(b)(3) permits relief from judgment entered as a

result  of  misrepresentations.9  We  have  held  that  negligent

misrepresentations suffice.10  But to obtain  relief  under  Rule

60(b)(3)  for negligent misrepresentation, a party must establish

that   the   misrepresentation  was  material,  i.e.,  that   the

misrepresentation  prevented  the party  from  fully  and  fairly

presenting  her  case or defense.11  The standard  is  clear  and

convincing evidence.12  On the other hand, if a party establishes

that  the  other party made misrepresentations with an intent  to

deceive,  the  burden may shift to the other party  to  establish

that  the  misconduct did not interfere with the  full  and  fair

presentation of the case.13

          The circumstances described by Harris and her attorney,

and unrebutted by any responsive affidavit or evidence, establish

that  the  proposed  order  submitted by Westfall  misrepresented

important facts, which may have convinced the superior  court  to

enter the December 27, 2001 child support order.

           For  example, the proposed child support order,  which

was  apparently intended to describe the custody awarded  in  the

June  7  order, stated that Westfall would have "primary physical

custody" of Cayla and that Harris would have physical custody  of

the  child  "less than 30% of the year."  But in fact, as  Harris

contended below, the June 7 custody order gave the parties shared

physical custody of Cayla.  We calculated the actual days awarded

for a sample year, 2002.  Our calculation is necessarily somewhat

inexact,  but  seems  to confirm that the June  7  Order  awarded

Harris  about  130  overnights a year.14          An  alternative

calculation  confirms that the order gave Harris  more  than  110

overnights  each year.  Westfall contended in the superior  court

that  the  order  granted  Harris only 104  overnights,  but  his

estimate was based on a bizarre assertion that an award of Friday

night   and  Saturday  night  visitation  counted  as  only   one

overnight.   To  compensate  for his error,  we  add  twenty-four

overnights  (three days for each of the eight school  months)  to

his   total  of  104  overnights.   The  resulting  total,   128,

substantially exceeds 110.   This was substantially more than the

110  days required to establish that the June 7 order awarded the

parties  shared  physical  custody and  that  it  did  not  award

Westfall "primary physical custody."

           In opposing the Rule 60(b) motion, Westfall's attorney

argued  below,  without  citing any  supporting  authority,  that

weekend  visitation  beginning Friday  after  school  and  ending

Sunday afternoon "would be" counted as only one night "under  the

rule."   This  theoretical justification for the  representations

made in the proposed child support order misreads Commentary  V.A

to Civil Rule 90.3.  That commentary states that

          [i]n  order for a day of visitation to  count
          towards  the  required  thirty  percent,  the
          children normally must remain overnight  with
          that   parent.    (Thirty  percent   of   the
          overnights  in a year total 110  overnights.)
          Thus,  a  day or an evening of visitation  by
          itself  will not count towards the  total  of
          time    necessary    for   shared    custody.
          Visitation from Saturday morning until Sunday
          evening would count as one overnight.
          
The commentary indicates that overnights, not daytime visitation,

are  what  should  be counted.  There is no reasonable  legal  or

factual  basis  for  Westfall's  superior  court  assertion  that

visitation encompassing Friday and Saturday overnights should  be

counted as only one overnight, rather than two.

           The proposed order also represented that Westfall  was

entitled  to receive child support of $189.75.  This  figure  was

apparently  derived by applying Rule 90.3(a) to Harris's  income.

But  because custody was to be shared per the June 7 order,  Rule

90.3(b),  not  Rule 90.3(a), should have governed child  support.

And,  per  the  correct rule, it seems likely that child  support

should  have  flowed  in the other direction,  from  Westfall  to

Harris.

           The  proposed order presented to the court in December

2001  therefore contained statements that misrepresented the true

state  of  the parties' custody and visitation rights  the  court

previously  awarded.  The statements that potentially misled  the

superior court are unquestionably misrepresentations for purposes

of  Rule  60(b)(3).  We assume that they were unintentional,  but

they nonetheless justify relief under Rule 60(b)(3).

     C.   Inadvertence

          Rule 60(b)(1) permits relief from judgment entered as a

result of inadvertence.  A party seeking relief under Rule  60(b)

must  establish  that  she had good reason  for  failing  to  act

sooner,  that she has a good claim or defense, and that  she  has

moved  to vacate judgment within a reasonable time.15  The  court

will  also  consider  whether reopening the judgment  will  cause

hardship  to the opposing party.16  The authority to give  relief

granted by Rule 60(b)(1) has been exercised in a wide variety  of

cases,  including  cases  in which an  employee  neglectfully  or

intentionally caused a party's attorney not to timely receive  or

file important litigation documents.17

           The  unrebutted contentions of Harris and her attorney

establish  that Harris's objections dated December 17,  2001  had

not  been  filed.   They  also  establish  that  it  was  through

inadvertence  that Harris and her attorney did not  realize  that

the objections had not been filed or that the child support order

was  entered  on  December 27, 2001.  This inadvertence  required

that  the child support order of December 27, 2001 be set  aside.

It  also  required  the superior court, before  deciding  on  the

merits  whether to reenter that proposed order, to  consider  the

objections Harris had previously attempted to submit in objecting

to the proposed order.

           Several  of  the  grounds in Harris's objections  were

compelling   and  unrebutted.   They  establish   that   Harris's

objections  were  meritorious.  On its face,  the  June  7  order

awarded Westfall and Harris shared physical custody of the child.

Westfall therefore did not in fact have primary physical  custody

of  the child.  Therefore, just as Harris's objections contended,

a  "joint"  child  support  calculation  was  required.   As  the

objections  contended, the court had to take  into  account  each

parent's earning capabilities to make that calculation.   And  as

the  objections also argued, before making that calculation,  the

court  had  to know Westfall's earning capacity and  should  have

required  him  to  submit a child support  guidelines  affidavit.

Harris's objections explicitly raised these grounds.  They should

have  carried  the  day  had they been filed  and  considered  in

December 2001.

           It  may  be  that the superior court,  in  considering

Harris's  Rule 60(b) motion, rejected as inaccurate  the  factual

assertions   made  in  Harris's  affidavit  and  her   attorney's

memorandum.   But  the  court made no findings  to  that  effect.

Because  the  court  did  not  find that  these  assertions  were

inaccurate, it was error to deny the Rule 60(b) motion.

          D.   Calculating Child Support on Remand

          Having concluded that it was an abuse of discretion not

to  grant relief from the child support order under Rule 60(b)(1)

and  (3),  we  remand.  Assuming that the June  7  order  awarded

shared  custody, it will be necessary to calculate child  support

under  Rule  90.3(b).  As Harris argued below, this will  require

Westfall  and  Harris  to file current child  support  guidelines

affidavits.

           We also observe that the parties' settlement agreement

remains  in  effect.  That agreement stated that the  court  will

make  findings  concerning the waiver of child support.   In  the

superior  court Westfall correctly argued that the parties  could

not waive child support absent findings from the court.  Westfall

then  explained  that  the  waiver was  intended  only  to  cover

arrearages for child support Harris owed before the first custody

order  was  entered.   He  claimed that  Harris  had  accumulated

arrearages  because Cayla had been in his primary custody  before

the parties reached agreement in 2001.  Since the parties did not

violate public policy by agreeing to waive the arrearages  Harris

allegedly  accumulated before any custody or  support  order  was

entered,  we deem this part of their agreement to be enforceable.

Consequently, the superior court on remand should give effect  to

this  limited waiver and to this part of their agreement.   Doing

so  will  preclude Westfall from claiming on remand  that  Harris

owes  child support for any period predating entry of  the  child

custody order following the May 22, 2001 settlement conference.

          But from the time of the settlement conference forward,

the  schedule agreed upon by the parties established  the  shared

custody  arrangement which thereafter should  have  governed  the

calculation of child support (absent any demonstration of changed

circumstances).  Because the superior court never  made  findings

that  would  have justified a waiver of child support thereafter,

the  court  on  remand must calculate child  support  under  Rule

90.3(b) from May 22, 2001 forward, after considering the parties'

respective incomes.

           We also observe that Harris was apparently willing  in

May  2001  to  waive child support so she could obtain  increased

visitation.   According  to  Harris's  affidavit,  Westfall   was

willing  to agree to shared physical custody only if the  parties

waived  child  support.  Because it appears that shared  physical

custody  would  have required Westfall to pay child  support,  in

effect  Harris tried to give up the opportunity to receive  child

support  in order to obtain a more favorable visitation schedule.

If  this indeed was the basis for the parties' agreement,  it  is

contrary to public policy, and could not justify excusing  either

parent from paying child support thereafter.18



     E.   Attorney's Fees Award

          Because we remand for entry of the relief Harris sought

in the superior court, we vacate the award of attorney's fees.

           They  are suspect in any event.  Westfall sought  fees

under  Alaska Civil Rule 11, on the asserted ground that Harris's

attorney  had  impermissibly alleged that the support  order  was

issued due to a misrepresentation by an adverse party.  We  think

there  is ample support for that contention by Harris's attorney.

The  text  of  Harris's own affidavit permits an  inference  that

Westfall  and his attorney recognized that it was error to  award

child    support    against   Harris.    We   also    note    the

misrepresentations in the proposed order regarding  the  physical

custody  of  the  child.  Therefore, the underlying  premise  for

Westfall's attorney's fees request was wrong.

           It is not clear why the court awarded attorney's fees.

The  order awarding fees does not refer to either Rule 11 or Rule

82.   On remand, assuming the corrected child support order  does

not require Harris to pay child support, Harris may apply for  an

award  of  fees  incurred  during:  (1) her  attempts  to  obtain

Westfall's  agreement to set aside the patently  incorrect  child

support  order,  and (2) her Rule 60(b) attempt to  persuade  the

superior   court  to  do  so  and  to  consider  her  substantive

objections to the proposed support order.

IV.  CONCLUSION

           We therefore REVERSE the order denying relief from the

child  support order, VACATE the child support order, VACATE  the

attorney's   fees   award,  and  REMAND  with   instructions   to

recalculate  child support under Rule 90.3(b) from May  22,  2001

forward.

_______________________________
1     Actually, the order Westfall proposed in December 2001  did
not  state that Westfall had "sole custody" of Cayla.  It  stated
instead  that  he had primary physical custody of the  child  and
that Harris had custody of the child less than thirty percent  of
the year.
2     Harris's  attorney's letter of March 28, 2002 to Westfall's
attorney stated:

          Robert Erwin
          . . . .
               Re:  child support error
          Dear Mr. Erwin,
                I  am writing regarding an error in the
          child  support order in this matter.  As  you
          may recall, your client was concerned that he
          would have a child support obligation because
          he  was agreeing to my client having so  much
          time  with the child, and his income  was  so
          much  higher than hers.  My client agreed  to
          waive  all child support in order to get  the
          visitation.  We discussed this at length with
          Judge Michalski and he agreed that, given  my
          client's  low income (due to disability)  and
          the  fact  that both parties could  meet  the
          child's needs, it would be fair to waive  the
          rule,  and  thus,  there would  be  no  child
          support.   We  put  that  agreement  on   the
          record.   I  have reviewed the  tape  of  the
          proceedings   in   which   Judge    Michalski
          specifically  states child  support  will  be
          waived  based  on  specific  findings  to  be
          drafted.  You offered to draft the paperwork,
          and  did  so.   You drafted the  Findings  in
          June,  2001, and the Child Support  Order  in
          December, 2001.
                Subsequently, your office filed a child
          support  order  requiring my  client  to  pay
          child   support,  disregarding  the   waiver,
          disregarding  joint custody, and disregarding
          the fact that her income is below the poverty
          line.  We filed objections pointing all  that
          out.
               Unfortunately, during that period, I had
          a  secretary  who was sabotaging my  practice
          and  my clients.  I have only just discovered
          the extent of her actions, and her employment
          was  terminated. . . .  This is one of  those
          cases.    I  reviewed  this  file  at   court
          Wednesday and discovered that she never filed
          my  objections,  and the  judge  signed  your
          proposed  order,  believing  it  to  be  non-
          opposed.   When the order came to my  office,
          the  secretary apparently destroyed it  so  I
          would not know what she had done. . . .
                I give you this detailed explanation so
          that  you  will know that I am not trying  to
          foist  blame  for  this  on  you.   I  accept
          responsibility that the objections  were  not
          filed.
                I  choose to assume that your  office's
          error  in drafting the order was perhaps  due
          to the passage of time, or delegation of this
          matter  to  an employee who had  no  personal
          knowledge  of  the waiver  agreement.   I  am
          concerned  because my client  has  spoken  to
          yours  and  she  states that they  agreed  he
          would  talk  to  you about  correcting  this.
          However, he then told her he had spoken  with
          you  and  would not be correcting it on  your
          instruction.  I choose to assume that this is
          some        miscommunication/misunderstanding
          between our clients. . . .
                The  fact  remains, however,  that  the
          order your office filed is in error and  does
          not accurately reflect the parties' agreement
          or  the  court's  order.  I  have  drafted  a
          stipulation to correct this, and hope we  can
          resolve  this  without resort to  litigation.
          Please   let   me  know  if  you   have   any
          objections.
                Thank you for your prompt attention  to
          this matter.
          Very truly yours,
          Robin A. Taylor

           Westfall's  attorney's letter of  March  29,  2002  to
Harris's attorney stated:

          Robin Taylor
          . . . .
          Dear Ms. Taylor:
                I  have been asked by Bob to respond to
          your   message   left  with   our   secretary
          yesterday  afternoon.  I have  enclosed  both
          the Order on Settlement Agreement and the log
          notes from the Settlement Conference held  on
          May  22,  2001.  Please direct your attention
          to  paragraph  10 of the Order on  Settlement
          Agreement.  It states that child support will
          be  determined  by Civil Rule 90.3  and  that
          Judge  Michalski would make a finding  as  to
          the  waiver of child support.  The log  notes
          show that the paragraph was read and that you
          had no objection either to form or content.
               The delay in preparing the child support
          order  was  due to your offices'  failure  to
          respond  to  requests from Judge  Michalski's
          chambers.   Judge Michalski's  chambers  then
          asked  our office to prepare the order, which
          we  did finally in December using Ms. Harris'
          own DR-305.  A copy of the proposed order was
          mailed  to  your office as well as the  final
          signed order.
                Under Alaska law, parents may not  make
          child  support  agreements,  which  are   not
          subject to 90.3.  The only agreement that the
          parties can make is for the custodial  parent
          to  waive past child support owed by  a  non-
          custodial  parent.   The  waiver   issue   in
          paragraph  10  pertained to  Steven  Westfall
          waiving  his  interest  in  any  back   child
          support  owed to him by Ms. Harris.   If  you
          remember,  Ms.  Harris had never  paid  child
          support for Cayla.
                Therefore,  based upon  the  above  and
          Alaska  law  we  will not sign a  stipulation
          amending the settlement agreement.
          Very truly yours,
          ERWIN & ERWIN, LLC
          Roberta C. Erwin
3    Silvers v. Silvers, 999 P.2d 786, 792 (Alaska 2000).
4    Koller v. Reft, 71 P.3d 800, 804 (Alaska 2003).
5    Lowe v. Lowe, 817 P.2d 453, 456 (Alaska 1991).
6     11  Charles Alan Wright, Arthur R. Miller & Mary Kay  Kane,
Federal Practice and Procedure  2866, at 382 (2d ed. 1995).

7    Id. at 382-83.
8     See  Song  v.  Song,  972 P.2d 589,  591-92  (Alaska  1999)
(holding motion for relief, filed nine months after court entered
decree  of  dissolution, timely because record supported  finding
movant  did  not learn details of disputed agreement until  after
court entered decree).
9     Alaska Rule of Civil Procedure 60(b) provides that a  court
"may  relieve  a party or a party's legal representative  from  a
final  judgment, order, or proceeding for . . .   fraud  (whether
heretofore      denominated     intrinsic     or      extrinsic),
misrepresentation, or other misconduct of an adverse party . .  .
."
10    Dickerson v. Williams, 956 P.2d 458, 468 (Alaska 1998).
11    Babinec v. Yabuki, 799 P.2d 1325, 1333 (Alaska 1990) (citing
McCall v. Coats, 777 P.2d 655, 658 (Alaska 1989)).
12    Id. (citing McCall, 777 P.2d at 658).
13    Id. (citing Anderson v. Cryovac Inc., 862 F.2d 910, 923 (1st
Cir. 1988)).
14     We  have  attempted to calculate the number of  overnights
allocated  to  each  party  for one year,  2002.   We  based  the
calculation on the June 7 order, record information, and publicly
available  Anchorage School District Calendars for the  2001-2002
and 2002-2003 school years.  Because 2002 was an "even" year, the
order  gave  Westfall custody on Memorial Day Weekend, Halloween,
Cayla's  birthday (October 5), and Father's Day.  It gave  Harris
Thanksgiving  and  Mother's  Day.   It  split  Cayla's  Christmas
vacation  - January 1-6, December 21-31 - evenly between Westfall
and  Harris.   It gave Westfall all school-year overnights  (from
January 7 through June 7 and from August 25 through December 20),
except that it gave Harris the first, second, and fourth weekends
from  Friday  after school until Sunday mid-afternoon  for  those
months.   It  also gave Harris Cayla's March 22-30 spring  break.
The  order gave Harris all of the overnights from June 8  through
August 24 except for July 14-27, which it gave Westfall.  We have
followed  the order's provision that holidays and vacations  take
precedence over weekend visitation, and have not added in  "make-
up" days to account for some overlaps. We are without information
as  to  Harris  and Westfall's birthdays, but even assuming  that
both  days were given to Westfall, Harris apparently had at least
130 overnights with Cayla.

15    See 11 Wright, Miller & Kane  2857, at 260.
16    See id. at 260-62.
17     See  generally id.  2858, at 265, 271.   See  also  In  re
Cendant Corp. Prides Litig., 235 F.3d 176 (3d Cir. 2000) (holding
that  mailroom  sabotage that caused late  filing  was  excusable
neglect);  Carollo v. Global Cape Ann Corp., 627 F.  Supp.  1507,
1508-09 (D. Mass 1986) (vacating for failure to state claim where
plaintiffs did not receive defendant's motion until after  court,
believing  motion  to  be unopposed, granted  it),  overruled  by
Horsley  v.  Mobil Oil Corp., 825 F. Supp. 424  (D.  Mass.  1993)
(recognizing  that Carollo had been impliedly, if not  expressly,
overruled  on  other grounds by Miles v. Apex Marine  Corp.,  498
U.S.  19  (1990));  Ellington v. Milne, 14 F.R.D.  241  (E.D.N.C.
1953)  (granting relief where neglectful employee caused  summons
and  complaint  to  be  put in storage  so  neither  company  nor
attorney knew of summons until year after default was entered and
where company had meritorious defense).
18    Cf. State, Dep't of Revenue, Child Support Enforcement Div.
v. Green, 983 P.2d 1249, 1256 (Alaska 1999) (stating that private
agreement between parents did not defeat state's right to recover
AFDC  payments); see also State Dep't of Revenue v.  Ortega,  682
So.  2d  589,  590  (Fla. Dist. App. 1996) (stating  that  public
policy  precluded  enforcement of agreement by  mother  to  waive
child support in exchange for father's waiver of visitation); Cox
v.   Cox,  776  P.2d  1045,  1048  (Alaska  1989)  (stating  that
deviations from Civil Rule 90.3 child support guidelines must  be
based  on  good  cause  and child support awards  should  reflect
child's needs and parents' abilities to pay).