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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rowland v. Monsen (05/19/2006) sp-6014

Rowland v. Monsen (05/19/2006) sp-6014, 135 P3d 1036

     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,


n/k/a BENNITA AGNOT, ) Supreme Court No. S- 11603
) Superior Court No.
v. ) 3AN-93-4739 CI
Appellee. ) No. 6014 - May 19, 2006
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, John Reese, Judge.

          Appearances:   Allison E.  Mendel,  Mendel  &
          Associates,    Anchorage,   for    Appellant.
          Kenneth  C.  Kirk, Kenneth Kirk & Associates,
          Anchorage, for Appellee.

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

          MATTHEWS, Justice.

          After  a  protracted  custody  dispute,  Roland  Monsen
successfully moved for an award of attorneys fees against Bennita
Rowland  under  AS 25.20.115.  Rowland then sought  to  have  the
award  set  aside as void under Alaska Civil Rule 60(b)(4).   She
also  challenged the award under Civil Rule 60(b)(6) urging  that
extraordinary circumstances warranted relief.  The superior court
rejected  her  Rule  60(b) challenges and  Rowland  now  appeals,
reiterating her arguments below.  She further appeals  the  award
on  the  merits.  We affirm on all points because the  order  for
attorneys fees is not void and Rowlands remaining contentions are
          Bennita  Rowland and Roland Monsen, who never  married,
have two children.  After their relationship ended, they made  an
agreement  that gave Monsen custody of the children  and  Rowland
visitation rights.  Several years later, Rowland petitioned for a
protective  order against Monsen on behalf of the children.   The
petition  alleged that Monsen sexually abused the children.   The
superior  court treated the matter as a motion to modify custody.
The  court  returned the children, who had been  in  the  interim
custody  of their paternal grandmother, to Monsens custody  after
finding that Rowland failed to prove any abuse.
          Monsen  then  moved  for  an award  of  attorneys  fees
pursuant  to AS 25.20.115.  He claimed the award to be  justified
on  the  grounds  that the lack of good faith on [Rowlands]  part
substantially  outweigh[ed] the financial  circumstances  of  the
parties.    More  specifically,  Monsen  charged   Rowland   with
pressuring the children to make false allegations of abuse.   The
motion  did not mention the specific financial position of either
party.  Rowland properly served her opposition to the motion  for
attorneys  fees on Monsen, but failed to file the  pleading  with
the  court.  The superior court ordered Rowland to pay  the  full
amount requested, $8,940, on August 15, 2000.  The order included
an explicit finding that Rowland ha[d] not acted in good faith in
this litigation.  Rowland then moved the court to reconsider  its
order,  complaining  about  the fact that  her  opposition  never
reached the court.  The motion for reconsideration was denied.
          On May 13, 2004, Monsen moved to reduce the unsatisfied
order  for  attorneys fees to judgment.  Rowland filed  a  cross-
motion for relief pursuant to Civil Rule 60(b).  She argued under
Rule  60(b)(4)  that the order was void and under  Rule  60(b)(6)
that   extraordinary  circumstances  warranted  relief.    Monsen
opposed  the  cross-motion on the merits  and  challenged  it  as
untimely,  noting  that  it was filed  nearly  four  years  after
distribution  of  the underlying order for attorneys  fees.   The
superior  court  denied Rowlands motion to set  aside  the  order
awarding attorneys fees as untimely and granted Monsens motion to
reduce that order to judgement.
          Rowland appeals the superior courts denial of her Civil
Rule  60(b) motion as well as the underlying order for  attorneys
     A.   Civil Rule 60(b)(4)
          According  to Rowland, she is entitled to relief  under
Rule 60(b)(4) because the order awarding Monsen attorneys fees is
void  for  four  reasons.   She claims that  Monsens  motion  for
attorneys fees was not timely filed; that the superior court  did
not  make  adequate  findings of fact; that  the  court  did  not
validly exercise its power; and that she was not given notice and
an opportunity to be heard.
          Rule  60(b)(4) provides that [o]n motion and upon  such
terms  as  are just, the court may relieve a party  or  a  partys
legal  representative from a final judgment, order, or proceeding
for  the  following reasons: . . . (4) the judgment is void.1   A
judgment or order is void
          where  the  state in which the  judgment  was
          rendered  had no jurisdiction to subject  the
          parties or the subject matter to its control,
          or  where the defendant was not given  proper
          notice  of the action and opportunity  to  be
          heard, or where the judgment was not rendered
          by  a  duly constituted court with competency
          to render it, or where there was a failure to
          comply   with   such  requirements   as   are
          necessary for the valid exercise of power  by
          the court.[2]
          In  reviewing  the denial of a Rule  60(b)(4)
          motion,  this  court does not  defer  to  the
          discretion of the trial court: [N]o  question
          of  the  lower courts discretion is presented
          by   a  Rule  60(b)(4)  motion  because   the
          validity of a judgment is strictly a question
          of law.[3]
          Rowlands  arguments  regarding the  timeliness  of  the
motion  and  the  factual  findings accompanying  the  order  are
without  merit.  Assuming the motion was late, and the order  was
not supported by adequate findings, the order would still not  be
void  under  Rule  60(b).  The untimeliness of a  motion  or  the
inadequacy of findings are not fundamental flaws that would  make
an order void.4
          Rowland  relies on AS 25.20.115 to support her argument
that  the  superior court lacked the power to order  her  to  pay
Monsens  attorneys  fees.  That statute  provides  that  [i]n  an
action  to  modify,  vacate, or enforce that  part  of  an  order
providing for custody of a child or visitation with a child,  the
court may, upon request of a party, award attorney fees and costs
of  the  action.5   According to Rowland,  the  court  could  not
validly award fees under AS 25.20.115 because no motion had  been
made  to  modify, vacate, or enforce custody or visitation.   She
thus reads into the statutes prerequisite that there be an action
to  modify,  vacate,  or enforce an order, a further  requirement
that a motion be filed before such an action can exist.
          Assuming, arguendo, that Monsens failure to comply with
a  requirement that he file a motion would render an award  under
AS  25.20.115 void under Rule 60(b)(4), Rowlands claim that an AS
25.20.115  action  requires  a  motion  is  not  accurate.    The
applicability of AS 25.20.115 depends, instead, on the nature  of
the underlying proceeding.6
          In  B.J.  v.  J.D., we concluded that AS 25.20.115  may
apply  notwithstanding the fact that no motion to modify, vacate,
or enforce was ever filed in the underlying proceeding.7  In that
case,  J.D. believed that he was the father of V.J., and  brought
an  action to gain custody of V.J.8  When a paternity test showed
that  J.D.  was not the father, the court dismissed his complaint
and  awarded custody to B.J.9  Several years later, J.D. filed  a
          new complaint seeking custody of V.J.  B.J. ultimately moved for
an  award of attorneys fees in the new action and a dispute arose
as  to whether AS 25.20.115 or the so-called divorce exception to
Civil Rule 82 set the standard for an award.10  J.D. never filed a
motion  to modify, vacate, or enforce custody.  Nevertheless,  AS
25.20.115   governed  J.D.s  efforts because  his  new  complaint
attempted  to modify the substance of the courts earlier  custody
order and the status quo.11  Put simply, the applicability of  AS
25.20.115  is determined by the potential effect of a proceeding,
not the procedure that gave rise to the proceeding.
          Here  too,  it is the substance of the proceeding  that
matters.   The effect of the protective order sought by  Rowland,
if  granted,  would be to withhold custody of the  children  from
Monsen.  As a result the custodial status quo  Monsens custody of
the  children   would  be  altered, and  AS  25.20.115  therefore
governs  Rowlands efforts.12  This remains true despite  Rowlands
pronouncement  to the superior court that she was not  seeking  a
modification  of  child custody.  While she  may  not  have  been
seeking  a  modification in name, she was, in effect,  trying  to
alter  the  status quo.  For these reasons, AS 25.20.115  applies
and Rowlands claim to the contrary fails.
          Rowland  also argues that the attorneys fees  order  is
void  because she did not receive due process of law because  she
had  no  opportunity properly to oppose the motion.  An order  is
void  if  the  court  that entered the order acted  in  a  manner
inconsistent  with  due process of law.13  At  the  core  of  due
process is an opportunity to be heard and the right to adequately
represent  ones interests.14  According to Rowland, her attorneys
failure  to file an opposition deprived her of an opportunity  to
be heard.
          Rowland received notice of Monsens motion for attorneys
fees  and had an opportunity to be heard.  Monsen served Rowlands
attorney  with  the  motion  on  May  13,  2000.   Her  attorneys
knowledge of the proceeding is imputed to Rowland.15  The superior
court  also granted Rowland extra time to respond to the  motion.
She therefore had an opportunity to respond.  Rowlands failure to
file an opposition to Monsens motion for attorneys fees does  not
render the resulting order void.
          Additionally,   Rowlands  due   process   claims   only
reiterate  the  argument she made in her August  2000  motion  to
reconsider.   She therefore knew of these potential  grounds  for
relief  at the time the underlying order issued.  Her appropriate
course would have been to appeal the merits of the order at  that
time.  As Rule 60(b) is neither a substitute for an appeal nor  a
device for obtaining an extension of time for filing an appeal,16
Rowland  waived  her  right to seek Rule 60(b)  relief  on  these
     B.   Civil Rule 60(b)(6)
          Rowland challenges the superior courts ruling that  her
Rule  60(b)(6) motion was untimely.  A party must move for relief
under subsection (6) within a reasonable time.17  What constitutes
reasonable  time necessarily depends on the facts in  each  case.
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.18  We review
orders  denying  relief  under Rule  60(b)(6)  for  an  abuse  of
discretion.19  An abuse of discretion is typically found only when
the  court  is  left  with a definite and firm conviction,  after
reviewing  the whole record, that the trial court  erred  in  its
          Here,   Rowland   filed   her  Rule   60(b)(6)   motion
approximately three years and nine months after the court ordered
her to pay Monsens attorneys fees.  She offers no explanation for
the  delay and none appears in the record.  Monsen, on the  other
hand, fails to illustrate how he may have been prejudiced by  the
nearly  four-year delay.  Indeed, he waited that long  to  reduce
the order to judgment and thereby to recover.  Neither the record
nor  Monsens brief evidences how he detrimentally relied  on  the
validity  of  the order during the time between its issuance  and
Rowlands Rule 60(b)(6) motion.  On these facts, then, a balancing
of  these  factors  favors neither party.   Yet  because  nothing
indicates  a good reason for Rowlands failure to move for  relief
sooner,  there is nothing on which to base a definitive and  firm
conviction  that  the trial court erred.21  We therefore  decline
Rowlands invitation to disturb the superior courts ruling on this
          To   support  her  argument that the court  abused  its
discretion,   Rowland  points  to  three  cases    Schofield   v.
Schofield,22 Juelfs v. Gough,23 and Lowe v. Lowe.24 In each,  she
claims,  this court concluded that a delay longer than  hers  was
reasonable.  Schofield and Juelfs each involved the use  of  Rule
60(b)(6) to modify a dissolution decree.  In Schofield six  years
passed  between the decree and the modification,25 and in  Juelfs
approximately  seven years had passed.26  We concluded  in  these
cases  that  the  trial  court did not abuse  its  discretion  by
finding the delay reasonable.  However, in each case, the parties
sought   a   modification  only  after  fundamental   assumptions
underlying their decrees changed.27  The delays were due  to  the
fact that the justifications for modification did not arise until
six  and  seven years after the respective decree.  Here  Rowland
points  to  no changed circumstances that justify a nearly  four-
year  delay.   For  this reason, her reliance  on  Schofield  and
Juelfs is misplaced.
          Rowlands  reliance on Lowe is similarly off  the  mark.
There, the trial court made no reference to the reasonableness of
a four and a half-year delay.28  On review, we  noted that such a
delay  was  not unreasonable as a matter of law and remanded  the
case for further factual findings on the issue.29  In the present
case the reasonableness question is also a factual one; but it is
one  which  appears  to  have been properly  dealt  with  by  the
superior  court.  Therefore, the fact that a four and a half-year
delay is not per se unreasonable is of no help to Rowland.
     C.    Rowlands Appeal of the Underlying Order for  Attorneys
          To the extent that Rowland also challenges the superior
courts August 2000 order to pay attorneys fees, her appeal cannot
be considered timely.  Alaska Appellate Rule 204(a)(1) requires a
notice  of appeal to be filed within 30 days from the date  shown
          in the clerks certificate of distribution on the judgment
appealed from . . . .  Here we consider the order a judgment  for
these  purposes  because it effectively disposed of  all  matters
before  the superior court.30  Rowland filed her notice of appeal
on August 11, 2004  some four years after the distribution of the
order.   Her  appeal from the order is therefore well beyond  the
time allotted under Appellate Rule 204(a)(1).
          The judgment of the superior court is AFFIRMED.
     1    Alaska R. Civ. P. 60(b)(4).

     2     Burrell  v.  Burrell, 696 P.2d 157, 163  n.11  (Alaska
1984) (quoting Holt v. Powell, 420 P.2d 468, 471 (Alaska 1966)).

     3    Kennecorp Mortg. & Equities, Inc. v. First Natl Bank of
Fairbanks, 685 P.2d 1232, 1236 (Alaska 1984) (quoting Aguchak  v.
Montgomery   Ward  Co.,  520  P.2d  1352,  1354  (Alaska   1974))
(alteration in original).

     4     See Burrell, 696 P.2d at 163 & n.11 (void order is one
issued  by  a  court without jurisdiction or authority  and  Rule
60(b) is not a substitute for a timely appeal).

     5    AS 25.20.115.

     6    See B.J. v. J.D., 950 P.2d 113, 119 (Alaska 1997).

     7    Id.

     8    Id. at 114.

     9    Id.

     10    Id. at 115, 119.

     11    Id. at 119.

     12    See id.

     13    State, Dept of Revenue, Child Support Enforcement Div.
v. Maxwell, 6 P.3d 733, 736 (Alaska 2000).

     14     State, Dept of Natural Res. v. Greenpeace,  Inc.,  96
P.3d 1056, 1063-64 (Alaska 2004) (quoting Matanuska Maid, Inc. v.
State, 620 P.2d 182, 192-93 (Alaska 1980)).

     15     Mead  v.  State, 445 P.2d 229, 231-32  (Alaska  1968)
(attorneys knowledge of trial date imputed to client).

     16    See, e.g., Burrell, 696 P.2d at 163 (Rule 60 is not  a
substitute for a timely appeal); Allen v. Bussell, 558 P.2d  496,
502  (Alaska 1976) (Rule 60 not meant to be an alternative to the
proper litigation of a case).

     17    Alaska R. Civ. P. 60(b).

     18     Harris  v.  Westfall, 90 P.3d 167, 173 (Alaska  2004)
(footnote omitted).

     19    Id. at 172.

     20     Buster  v. Gale, 866 P.2d 837, 841 n.9 (Alaska  1994)
(quoting Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375, 378-
79 (Alaska 1982)).

     21     See Sandoval v. Sandoval, 915 P.2d 1222, 1224 (Alaska
1996)  (declining  to find an abuse of discretion  in  the  trial
courts  conclusion that delay was unreasonable where  no  reasons
for  the  delay were provided); cf. Harris, 90 P.3d at 173  (good
reasons  for delay in the absence of prejudice to the  non-moving
party  showed that trial court abused its discretion  in  holding
that five-month delay was unreasonable).

     22    777 P.2d 197 (Alaska 1989).

     23    41 P.3d 593 (Alaska 2002).

     24    817 P.2d 453 (Alaska 1991).

     25    Schofield, 777 P.2d at 202.

     26    Juelfs, 41 P.3d at 594-95.

     27    Schofield, 777 P.2d at 201; Juelfs, 41 P.3d at 597.

     28    Lowe, 817 P.2d at 459.

     29    Id.

     30     See  D.L.M. v. M.W., 941 P.2d 900, 902 (Alaska  1997)
(order  that effects the final disposition of a case  starts  the
clock  for  post-trial  actions); North Slope  Borough,  Dept  of
Admin. & Fin., Tax Audit Div. v. Green Intl, Inc., 969 P.2d 1161,
1163  (Alaska 1999) (quoting Appellate Rule 204(a)(5)(A)  (If  no
appeal  or  cross-appeal is pending, the allowance of  costs  and
attorneys fees . . . shall be considered a final judgment subject
to  separate  appeal  limited  to  the  subject  of  costs  [and]
attorneys fees.)).

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