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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).
