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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Vazquez v. Campbell (07/28/2006) sp-6031

Vazquez v. Campbell (07/28/2006) sp-6031, 146 P3d 1

     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,


SCOTT AND SHERRY VAZQUEZ, )Supreme Court No. S-11316
Appellants, ) Superior Court Nos.
) 3AN-03-4516 CI
v. ) 3AN-03-11 P/A
Appellee. ) No. 6031 - July 28, 2006
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, John Reese, Judge.

          Appearances:    Kenneth  P.  Jacobus,   P.C.,
          Anchorage,   for  Appellants.   Jonathon   A.
          Katcher,  Pope  &  Katcher,  Anchorage,   for

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

          MATTHEWS, Justice.

          Challenged in this case is an award of actual attorneys
fees   and   costs   against  Scott  and  Sherry   Vazquez,   who
unsuccessfully opposed Diana Campbells effort to enforce a  child
custody  order  entered  by an Oregon  court.   The  trial  court
concluded  that the Vazquezes had engaged in bad faith litigation
and thus an award of full fees was justified.
           We find it unnecessary to decide whether the Vazquezes
litigated  in  bad faith.  The enforcement petition  was  brought
pursuant  to  Alaskas  version  of  the  Uniform  Child   Custody
Jurisdiction  and Enforcement Act (UCCJEA), AS 25.30.300.910.   A
section of the act, AS 25.30.500(a), requires the award of actual
reasonable attorneys fees and expenses to the prevailing party in
an enforcement proceeding conducted under the act.1
          Under Alaska Civil Rule 82, partial attorneys fees  are
awarded to the prevailing party as a matter of course.  An  award
under Rule 82 may be increased to encompass full reasonable  fees
in  cases  where a non-prevailing party has engaged in bad  faith
conduct or pursued frivolous claims or defenses.2  Where statutes
call  for  an award of reasonable attorneys fees to a  prevailing
party, we have concluded that reasonable actual fees are intended
rather  than reasonable partial fees as would be the  case  under
Rule  82.3   In  accordance with this approach, we  interpret  AS
25.30.500(a) as requiring the award of full reasonable  attorneys
fees.4   On this basis we affirm the award of full fees  made  by
the superior court.5
          The  Vazquezes also argue that costs, as distinct  from
attorneys  fees, should not have been awarded for three  reasons,
none of which, in our judgment, is meritorious.  They claim first
that  the  right to costs has been waived because Campbell  filed
her  request  in a motion presented to the superior court  rather
than  in the form of a cost bill presented to the clerk of  court
as  required  by  Civil Rule 79(b).  Campbells motion  requesting
costs  was timely under Rule 79 and was sufficiently detailed  to
meet  the  requirements of that rule.  If the superior court  had
wished, it could have referred the question of costs to the clerk
for  an  initial decision.  Under these circumstances we conclude
that  Campbell  substantially complied with the  requirements  of
Rule 79.
          The  Vazquezes also argue that travel expenses for  the
childs  father  were  not  authorized under  Civil  Rule  79  and
therefore  they  should not have been awarded  even  though  such
expenses  are  authorized  under AS 25.30.500(a).   But  this  is
incorrect  because Rule 79 itself provides for the  allowance  of
other costs allowed by statute.6
          The  Vazquezes third point concerning costs is that the
award  was  unconscionable because they  incurred  many  expenses
caring  for the child in reliance on Campbells adoption  consent,
which  she  subsequently,  and timely,  revoked.   The  statutory
standard  here  is  that reasonable expenses  should  be  awarded
unless  the  party  from whom costs . . . are sought  establishes
that the award would be clearly inappropriate.7  A decision as to
whether  this  standard has been satisfied is  committed  to  the
discretion of the superior court.  We see nothing to persuade  us
that the court abused its discretion in rejecting this argument.
          The  Vazquezes make two further arguments based on  the
fact  that  Campbell  was represented by  Alaska  Legal  Services
Corporation  and  incurred no attorneys fees.  They  argue  first
that  the  purpose of an award of attorneys fees is reimbursement
of the prevailing party, and since Campbell incurred no fees that
purpose will not be served.  We reject this point because we have
consistently held that clients receiving free legal services  may
recover  attorneys  fees.8  As we stated in  Cizek  v.  Concerned
Citizens  of  Eagle River Valley, Inc.:  [A] clients  absence  of
obligation  to pay for legal services rendered does not  preclude
an award of attorneys fees under Civil Rule 82.9
          The  Vazquezes  also  argue that a  federal  regulation
governing   Alaska  Legal  Services  Corporation  prohibits   the
corporation  from  requesting  attorneys  fees.10   Alaska  Legal
Services  sought  to  avoid  this prohibition  by  arranging  for
private counsel to appear pro bono and to move for costs and fees
in  this  case.   The Vazquezes argue that this is impermissible.
The superior court  did not reach this argument and instead ruled
that  [t]he  arguments  raised concerning  the  legality  of  Ms.
Campbells  counsel to receive legal fees is a matter between  Ms.
Campbell  and her counsel, and between ALSC and LSC.  It  is  not
the  concern of Mr. and Mrs. Vazquez.  We agree with the superior
court.   In  our  view  the regulation is not  enforceable  by  a
private  litigant.   The  remedy for any violation  resides  with
Alaska Legal Services funding authority.
          For  the  above  reasons the judgment of  the  superior
court is AFFIRMED.
     1    AS 25.30.500(a) provides:

               To the extent authorized by court rules,
          the  court shall award the prevailing  party,
          including  a state, necessary and  reasonable
          expenses  incurred by or  on  behalf  of  the
          party,    including   costs,    communication
          expenses, attorney fees, investigative  fees,
          expenses for witnesses, travel expenses,  and
          child  care  expenses  incurred  during   the
          course  of the proceedings, unless the  party
          from whom costs, fees, or expenses are sought
          establishes that the award would  be  clearly
     2     Rockstad v. Erikson, 113 P.3d 1215, 1224 (Alaska 2005)
([We]  have held that full fee awards are manifestly unreasonable
unless  the  prevailing party has shown bad  faith  or  vexatious
conduct by the losing party. ) (quoting Demoski v. New, 737  P.2d
780, 788 (Alaska 1987)).

     3     See  Still  v. Cunningham, 94 P.3d 1104, 1117  (Alaska
2004);  Bobich  v.  Stewart, 843 P.2d 1232,  1237  (Alaska  1992)
([W]hen interpreting a state statute that expressly calls for  an
award  of reasonable attorneys fees to successful plaintiffs,  we
have  held that full fees should be awarded to claimants as  long
as those fees are reasonable.); Boyd v. Rosson, 713 P.2d 800, 802
(Alaska 1986).

     4     The  opening phrase of AS 25.30.500(a), to the  extent
authorized  by  court rules, does not alter our  conclusion.   It
seems  likely that this language was added to the Uniform Act  by
the   legislature  so  that  subsection  .500(a)  would  not   be
considered to be an attempt to change court rules.  See Leege  v.
Martin,  379  P.2d  447,  450-51  (Alaska  1963)  (a  legislative
enactment will not be effective to change court rules of practice
and  procedure  unless  the  bill specifically  states  that  its
purpose  is to effect such a change and is passed by a two-thirds
vote  of  the members elected to each house).  Civil  Rule  82(a)
itself  provides that statutory attorneys fees are to be  awarded
in  preference  to those prescribed under the  rule:   Except  as
otherwise provided by law . . . the prevailing party . . .  shall
be  awarded  attorneys fees calculated under this  rule.   Alaska
Statute 25.30.500(a) is a law that otherwise provide[s] attorneys
fees as authorized by Rule 82.

     5     This court may affirm a judgment on grounds other than
those relied on by the superior court.  Ransom v. Haner, 362 P.2d
282, 285 (Alaska 1961).

     6    Alaska R. Civ. P. 79(f)(15).

     7    AS 25.30.500(a).

     8     See, e.g., Sisters of Providence In Washington v. A.A.
Pain  Clinic,  Inc., 81 P.3d 989, 1011 (Alaska  2003);  Cizek  v.
Concerned Citizens of Eagle River Valley, Inc., 71 P.3d 845,  849
(Alaska 2003); Arctic Slope Native Assn v. Paul, 609 P.2d 32,  38
(Alaska 1980); Gregory v. Sauser, 574 P.2d 445, 445 (Alaska 1978)
(reviewing  award  of attorneys fees in case  handled  by  Alaska
Legal Services Corporation).

     9    Cizek, 71 P.3d at 849.

     10     The  regulation is 45 C.F.R.  1642.3.   It  provides:
Except  as  permitted by  1642.4, no recipient or employee  of  a
recipient may claim, or collect and retain attorneys fees in  any
case undertaken on behalf of a client of the recipient.

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