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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Morgan v. Morgan (09/22/2006) sp-6047

Morgan v. Morgan (09/22/2006) sp-6047, 143 P3d 975

     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,


) Supreme Court No. S- 11728
) Superior Court No.
v. ) 3AN-74-2726 CI
(now SWANSON),)
Appellee. ) No. 6047 - September 22, 2006
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, John Suddock, Judge.

          Appearances:  William T. Ford, Anchorage, for
          Appellant.   Elizabeth D.  Morgan  (Swanson),
          pro se, Anchorage.

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

          MATTHEWS, Justice.

          When the parties divorced in 1974, no account was taken
in  the  decree dividing the parties property of Charles  Morgans
unvested  pension.   In  2000 Elizabeth  Morgan  learned  of  the
pension,  and  in 2003 she moved to modify the property  division
decree.   The  superior  court granted her  motion.   We  reverse
because  the  motion  was  untimely given  the  three-year  delay
between  when  she learned of the pension and when she  moved  to
modify the decree.
          Charles  and  Elizabeth Morgan married on  October  10,
1963,  and divorced on August 8, 1974.  During the marriage,  the
parties acquired a home, a lot in Bear Valley, a one-hundred-year
lease  at $250 per year  on a cabin site near the Kenai River,  a
truck,  and  a  station  wagon.   In  1968  Charles  joined   the
International Brotherhood of Electrical Workers and began working
for  the Anchorage Telephone Utility.  He retired in 1994.   That
job came with a pension that paid Charles $2,400 per month as  of
October  2004.   Charles testified that his pension  vested  some
time after the divorce.
          In  the  divorce  proceeding, one attorney  represented
both  Charles  and Elizabeth.  The resulting decree  awarded  the
marital home, the Kenai River property, and the truck to Charles.
The station wagon and the Bear Valley lot went to Elizabeth.  The
decree  did not mention Charless pension.  This is not surprising
since  how nonvested pensions should be treated upon divorce  was
not  settled until 1987, when this court decided Laing v. Laing.1
In  Laing  we  held  that  nonvested  pension  rights  should  be
considered   marital  property  and  divided  using  a   reserved
jurisdiction  approach  under which the trial  court  orders  the
employee  spouse to pay to the former spouse a fraction  of  each
pension payment actually received.2
          In  June 2003 Elizabeth filed a Civil Rule 60(b) motion
to modify the dissolution decree.  Her motion sought, in relevant
part,3  to recover one-hundred percent of the portion of Charless
pension earned during the marriage.  She claimed that the pension
was  a  marital asset unknown to her at the time of the  divorce.
As  a  result, she argued, the dissolution decree did not account
for  all  of the marital assets and warranted modification  under
Rule  60(b).   The  superior court found that Elizabeth  did  not
learn of the pension until approximately 2000.
          The  superior court granted Elizabeths motion,  finding
Civil  Rule  60(b)(6)  to be applicable.4   The  court  left  the
ultimate  determination of the marital amount  up  to  a  pension
administrator  upon the filing of a qualified domestic  relations
order.   Elizabeth  was  to receive one-hundred  percent  of  the
marital portion of the pension because Charles has been receiving
the entire pension for a substantial time, . . . received all the
equity  in  the  [marital] home, which substantially  appreciated
during  his subsequent ownership. . . . [and] raised no objection
that  the  requested allocation would be unfairly  burdensome  to
him.   The monthly payment to which Elizabeth was entitled  as  a
result of the qualified domestic relations order turned out to be
          In  this  appeal Charles argues, inter alia,  that  the
superior  court should not have granted Elizabeths  motion  under
Rule  60(b)(6) to divide his pension because she did not file  it
within  a  reasonable time.  We agree and therefore do not  reach
Charless other claims of error.
          A party must move for relief under Rule 60(b)(6) within
a reasonable time.5  What constitutes reasonable time necessarily
depends  on  the  facts in each case.6  We review orders  denying
Rule 60(b)(6) relief under the abuse of discretion standard.7
          Here, nothing indicates that Elizabeth moved for relief
          under Rule 60(b) within a reasonable time.  The superior court
found  that Elizabeth learned of the pensions existence in  2000.
She  moved for relief in 2003.  Elizabeths stated reason for  the
three-year  delay is a fear of Charles[] and his  anger  problem.
While  we  appreciate Elizabeths fear in light  of  the  superior
courts findings of repeated abuse suffered by her at the hands of
Charles during the marriage,8 she offers no explanation why  that
fear prevented her from moving for relief when she discovered the
pension in 2000, twenty-six years after the divorce, rather  than
2003,  and  none appears in the record.  There is no evidence  of
circumstances  beyond [Elizabeths] control which prevented  [her]
from asking for relief sooner.9
          Further,  the  nature of Elizabeths motion  for  relief
weighs  heavily  against holding that her  three-year  delay  was
reasonable.   While  her  motion was  considered  to  be  a  Rule
60(b)(6)   motion,   which  carries  only   a   reasonable   time
requirement, her motion, in substance, sought relief  because  of
newly  discovered  evidence  in the  form  of  Charless  pension.
Clause (2) of Rule 60(b) provides that relief from a judgment may
be  obtained for newly discovered evidence but carries  a  strict
one-year-limitations period that is applicable from the  date  of
the  judgment.10   Clause (2) arguably does  not  strictly  apply
because of the uncertainty as to whether an unvested pension  was
marital  property in 1974 when the judgment was  entered.   After
our  Laing decision in 1987, there was no longer any uncertainty,
and  thus,  when Elizabeth learned of the pension  in  2000,  its
relevance  as evidence that an item of marital property  had  not
been  divided  was  not  in  doubt.  In  our  view  it  would  be
inconsistent  with  the  one-year  limit  for  newly   discovered
evidence to allow Elizabeth more than one year after learning  of
the  pension  to  seek  modification of the  judgment   at  least
barring persuasive reasons for greater delay.11
          Taken together, the absence of a viable explanation for
Elizabeths  delay in moving for relief under Rule 60(b)  and  the
fact  that  her  request was based on newly  discovered  evidence
that,  when explicitly relied on under Rule 60(b)(2),  carries  a
one-year-limitations  period,  lead  us  to  conclude  that   the
superior  court  abused its discretion by ruling that  Elizabeths
motion was timely.
          The  modification order is therefore REVERSED and  this
case is REMANDED.
     1    741 P.2d 649, 655-58 (Alaska 1987).

     2    Id. at 657.

     3      Elizabeths  Rule  60(b)  motion  also   argued   that
modification  was warranted with regard to the property  actually
adjudicated, claiming that habitual abuse suffered at  the  hands
of  Charles caused her to be emotionally unable to participate in
the hearing.  The superior court denied this request as untimely.
Elizabeth does not challenge this ruling.

     4    Civil Rule 60(b) provides in relevant part:

               On  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:
               (1)  mistake, inadvertence, surprise  or
          excusable neglect;
               (2)  newly discovered evidence which  by
          due  diligence could not have been discovered
          in  time  to move for a new trial under  Rule
               (3)     fraud     (whether    heretofore
          denominated    intrinsic    or    extrinsic),
          misrepresentation, or other misconduct of  an
          adverse party;
               (4) the judgment is void;
               (5)  the  judgment has  been  satisfied,
          released, or discharged, or a prior  judgment
          upon  which it is based has been reversed  or
          otherwise   vacated,  or  it  is  no   longer
          equitable  that  the  judgment  should   have
          prospective application; or
               (6)  any other reason justifying  relief
          from the operation of the judgment.
               The  motion  shall  be  made  within   a
          reasonable time, and for reasons (1), (2) and
          (3) not more than one year after the date  of
          notice  of the judgment or orders as  defined
          in Civil Rule 58.1(c).
     5    Alaska R. Civ. P. 60(b).

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

     7     Id. at 172.  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 ruling.  Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375,
378-79 (Alaska 1982).

     8     The superior court found the marriage to be marked  by
severe violence.

     9     Dewey  v.  Dewey,  886  P.2d 623,  629  (Alaska  1994)
(affirming  finding  that  motion under  Rule  60(b)(6)  was  not
brought within a reasonable time where movant could not show that
circumstances beyond his control caused a seven-year delay).

     10    Further, it is generally held that clause (6) does not
apply  to circumstances covered by the specific clauses  of  Rule
60(b)  that precede it.  Vill. of Chefornak v. Hooper Bay Constr.
Co., 758 P.2d 1266 (Alaska 1988) ([c]lause (6) and the first five
clauses  of  Rule  60(b)  are mutually exclusive.   Relief  under
clause  (6)  is  not  available  unless  the  other  clauses  are
inapplicable.  (quoting Farrell v. Dome Labs., 650 P.2d 380,  385
(Alaska 1982)).

     11    We thus conclude that the one-year limit applicable to
motions   based  on  newly  discovered  evidence  should   inform
decisions  as  to  whether a delay in making  a  similarly  based
motion under Rule 60(b)(6) is reasonable.

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