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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hicks v. Pleasants (05/25/2007) sp-6128

Hicks v. Pleasants (05/25/2007) sp-6128, 158 P3d 817

     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- 12110
Appellant, )
) Superior Court No.
v. ) 3AN-04-11374 CI
Appellee. ) No. 6128 - May 25, 2007
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Stephanie E. Joannides, Judge.

          Appearances: Robert C. Erwin, LLC, Anchorage,
          for  Appellant.  Michael Gershel,  Anchorage,
          for Appellee.

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

          CARPENETI, Justice.

          I.   The trial court divided a divorcing couples property
following entry of a default divorce.  The defaulted defendant in
the  underlying divorce asserts that the courts property division
differed  in  kind  and exceeded the amount  prayed  for  in  the
complaint  and  is therefore void.  He further  argues  that  the
court  applied  an incorrect standard of proof  to  the  property
division.   Because we determine that the language in the  prayer
for relief was sufficient to put the defendant on notice that the
court would divide the marital estate, we conclude the court  had
the  authority to adjudicate the property rights of the  parties.
However, because the court applied an erroneous standard of proof
at the property division hearing, we vacate the property division
order and remand for a new property division.
          Grace Pleasants and Francis Hicks were married in 1985.
In  February  2005  Pleasants served Hicks  with  a  summons  and
complaint for divorce.  Hicks did not file an answer or otherwise
appear  in the action, and Pleasants moved for entry of  default.
The  clerk of court entered default against Hicks in April  2005.
Pleasants  sent  Hicks a letter notifying him  of  the  scheduled
default  hearing.  On June 6, 2005, Master Andrew Brown commenced
a  default  divorce  hearing. Hicks arrived as  the  hearing  was
underway.  He told Master Brown that [when] I defaulted   I  only
defaulted because I was not contesting the fact of divorce. . . .
I  wasnt  stipulating to any values or anything like that because
none  of that had been put before me.  The master informed  Hicks
that  although  he  was a defaulted party, Hicks  maintained  the
right  to  a  contested default hearing.  The master then  set  a
contested  default divorce hearing for July  22.   He  issued  an
order  to  hear  .  .  .  evidence and  argument  concerning  the
contested  default divorce.  The order required both  parties  to
file   with   the   court   and  exchange  up-to-date   financial
declarations,  copies  of  their last two  pay  stubs,  and  2004
federal  tax returns.  The order also noted that [s]ince it  will
be a default judgment hearing the following applies . . .
          [O]nce  a default has been entered and  entry
          of   judgment  pursuant  to  the  default  is
          sought,  the function of the trial  court  is
          not  to  weigh conflicting evidence;  rather,
          the  court  must make the sole  determination
          whether the allegations of the party in whose
          favor  the  default  has  been  entered   are
          susceptible   of  proof.  .   .   .   [G]iven
          conflicting but legitimate evidence  on  both
          sides,  the court is bound to enter  judgment
          for  the party in whose favor the default has
          been entered.
          The  hearing was held July 22nd and July 26th.  Neither
party  was  represented  by an attorney.   At  the  hearing,  the
parties disagreed primarily about the values of various items  of
personal  property, the value of a condominium, a bank note,  and
the  characterization of monies withdrawn from a  trust  account.
Following   the   hearing,  Master  Brown   took   the   property
distribution issue under advisement.  The superior court  entered
a partial decree of divorce.
          On  August  9,  2005,  the master  issued  his  report,
findings  of  fact, and proposed property division.   The  report
recommended  allocating property and debts to  both  parties  and
that  Hicks  pay  Pleasants a monthly cash sum to  equalize   the
difference  in  marital  debt  allocated  to  each.   Hicks  then
retained  counsel and objected to the report.  He asked that  the
court   modify  or set aside the recommendations on  the  grounds
that  the judgment exceeded Pleasantss prayer for relief and  was
therefore  void  under Alaska Civil Rule 54.  He  further  argued
that  the court applied an incorrect standard of proof in valuing
and  dividing  the marital property.  Without comment  on  Hickss
objections, Superior Court Judge Stephanie Joannides adopted  the
report.   Hicks  filed for and was granted a  stay  of  judgment.
Hicks now appeals the property division order.
          The  validity  of a judgment is a question  of  law  to
which we apply our independent determination.1
          The  entry of a default judgment and the refusal to set
aside  a  default judgment are reviewed for abuse of discretion.2
An  abuse  of discretion is found only where we are left  with  a
definite  and firm conviction, after reviewing the whole  record,
that the trial court erred in its ruling.3
          We  review  legal determinations made  during  a  trial
courts division of property de novo.4
     A.    The Courts Property Division Falls within the Scope of
the Prayer for           Relief.
          Hicks  does  not  contest the entry of default  or  the
divorce  decree portion of the default judgment.5   But  he  does
contend  that  because Pleasants did not list each marital  asset
and  debt  and its corresponding value in her prayer for  relief,
the  property  division order was outside  the  scope  of  relief
requested.  Judgments issued outside the scope of the prayer  for
relief are void.6
          Civil  Rule  54(c)  limits the  scope  of  recovery  in
default  judgments: a default judgment shall not be different  in
kind  from or exceed in amount that prayed for in the demand  for
judgment.7  In order for a default judgment to comply  with  Rule
54(c),  a  complaint  must therefore give  a  defendant  adequate
notice  upon  which to make an informed judgment  on  whether  to
default or actively defend.8
          In  the  prayer for relief in her complaint,  Pleasants
requested that the court adjudicate the assets and liabilities in
a fair and [e]quitable manner.  Hicks contends that this language
is  insufficient  to  permit the court to  equitably  divide  the
assets and debts of the parties in a default context.  He asserts
that  only  where  a prayer for relief specifies  each  piece  of
marital  property  and debt and its value can  a  court  issue  a
default judgment.  We reject Hickss contention.
          If  Pleasants had included each asset and debt  in  her
complaint, and its corresponding value, both the items and  their
values  could  then  be  considered factual  allegations  of  the
complaint.   Where the court determines that a  defendant  is  in
default,  the factual allegations of the complaint, except  those
relating  to  the  amount of damages, will  be  taken  as  true.9
Therefore,  if Pleasants had listed each item as Hicks  contends,
and  Hicks had defaulted, his default would obviate the need  for
any  subsequent hearing on valuation of the property.  Pleasantss
claim would be for a sum certain within the scope of Alaska Civil
Rule   55(b)  and  the  clerk,  rather  than  the  court,   could
theoretically enter default judgment.10  Civil Rule 55  therefore
already  contemplates  the  very  procedural  scheme  that  Hicks
suggests  is somehow necessary for entry of judgment  under  Rule
          Even  where  a prayer for relief does not  specify  the
property  subject  to  division or the exact  parameters  of  the
division requested, we have held that a more general claim can be
sufficient  to  invoke  the  courts  jurisdiction  to  adjudicate
property  rights.   In Rhodes v. Rhodes,11 the complaint  alleged
that  there  are property rights to be adjudicated,  sought  such
other  and further relief as the court might deem equitable,  and
listed the equity of the family home and business but did not ask
for  a  judicial division of the property of the parties.12   The
allegations  were  admitted by defendant.13   We  relied  on  the
language  in  the  complaint and the facts in the  record,  which
reflected that both parties were previously aware of the property
dispute and had contemplated that the issues would be before  the
court,  in  upholding the superior courts authority to adjudicate
the property rights.14
          The  plain  language in Pleasantss  prayer  for  relief
contemplated  the  division of property and liabilities.   Hickss
claim  that  this language failed to provide him with  notice  is
belied  by  the language.  Moreover, Hickss status as  Pleasantss
husband  renders him uniquely situated to and intimately familiar
with  the property subject to division.  As one California  court
          [Allowing  a default and default judgment  to
          stand  against  the defaulting spouse]  makes
          sense in the marital dissolution arena, where
          the  parties  are both aware of the  property
          subject  to  division, the  responding  party
          knows that the petitioner seeks a division of
          that  property, and the court is  statutorily
          bound  to  value  and  divide  the  community
          property equally.15
          Finally,  we  note  that Alaskas  civil  rules  clearly
contemplate  that  a  partys identification and  itemizations  of
assets,  liabilities,  and their proposed  values  in  a  divorce
proceeding might not be produced until trial nears.  Alaska Civil
Rule  90.1  allows  parties  to  a divorce  proceeding  involving
property disputes to file a list of items and debts at issue five
days before trial.16  Hickss claim that Pleasants was required to
list every asset and debt and their value immediately upon filing
her complaint in order to receive a default judgment is therefore
without merit.
          Hicks  further asserts that the Master took  the  legal
view   that  Rule  54(c)  does  not  apply  to  default   divorce
proceedings.   Hicks relies on Oaks v. Grocers Wholesale,  Inc.17
for   the   proposition  that  the  courts  order  violated   the
requirements  of  Rule  54(c).18   In  that  case,  Oaks  gave  a
promissory  note  to Grocers and secured the note  by   property.
Oaks  defaulted on the note.  Grocers sued, claiming $19,000 plus
interest now due and owing, and requested a foreclosure and  sale
of the mortgaged property.19  The clerk of court entered a $20,000
default judgment against Oaks on the note.20  On appeal, we  held
that  the  default judgment was improper because  the  plaintiffs
demand  for  judgment  did not include  a  request  for  a  money
          judgment and therefore the plaintiffs relief was limited to the
amount satisfied through a sale of the property.21
           Unlike Oaks, here Pleasantss complaint plainly  sought
an   equitable   distribution   of  liabilities   and   therefore
contemplated   that  either  party  could  be  left   with   more
outstanding  debts  than the other.  Moreover  nowhere  does  the
record support Hickss argument that the court was unaware  of  or
ignored  the  limitations imposed by Rule  54(c).   Master  Brown
plainly  contemplated Rule 54(c) at the hearing as  evidenced  by
his  attention  to  what relief was requested:  [the  prayer  for
relief]  has  the basic language . . . that the court  adjudicate
the  assets and liabilities in a fair and equitable manner . .  .
even though [Pleasants] didnt specify any of the particular items
of  property  or debts she wanted to divide . . . .   This  basic
language  was  sufficient to put Hicks on notice that  the  court
would divide the marital property.22
          For all of these reasons, we hold that the language  in
Pleasantss  prayer  for relief was sufficient  to  put  Hicks  on
notice  that  the  court would undertake to  divide  the  marital
estate.   Because  he  elected to default in  the  face  of  that
notice,  the  court could properly exercise its jurisdiction  and
adjudicate  the  property rights of the  parties.   The  property
division order is therefore consistent with Civil Rule 54.
     B.   The  Court  Applied  an Incorrect Standard  of  Law  in
          Adjudicating the Property Rights of the Parties.
          Hickss   second  argument  is  that  the  trial   court
incorrectly   applied  Syndoulos   Lutheran  Church   v.   A.R.C.
Industries,  Inc.,23  thereby (1) ignoring Pleasantss  burden  of
proof  at  the hearing; (2) dividing the property solely  on  the
testimony of [Pleasants]; and (3) denying Hicks due process.   He
contends  that  the  courts application of  Syndoulos  improperly
shifted  the  burden  of  proof  and  precluded  the  court  from
independently  considering  the evidence.   Because  a  divorcing
couples  property  division falls within  a  unique  category  of
family  law  defined by well-established procedures, and  because
Syndoulos  is more properly confined to the traditional liability
context of default judgments, we conclude that Syndoulos does not
apply in the context of property division.
          In  Syndoulos, plaintiff sued a subcontractor  business
and  Farr,  alleging  Farr was an associate  or  partner  of  the
subcontractor.24  The clerk entered default.  At the post-default
trial  on  damages,  Farr  appeared and  attempted  to  introduce
evidence  that he was not a partner in the business as originally
alleged.25  Judgment was entered against all defendants,  but  on
reconsideration the judgment against Farr was quashed because the
trial  court  was  not persuaded that Farr was a  partner.26   On
appeal,  we  held that Civil Rule 55(c)(1) permits the  court  to
question  a  defendants  liability at  his  damages  trial  under
certain circumstances:
            If . . . in order to enter the judgment  it
          is  necessary  for the plaintiff  to  present
          evidence  supporting  one  or  more  of   the
          plaintiffs  allegations and if the  plaintiff
          is  unable to adduce any evidence tending  to
          support  the questioned allegations,  then  a
          judgment  should  be entered  dismissing  the
          plaintiffs  complaint.   The  plaintiff  need
          not,  however,  establish the  truth  of  the
          allegations   by  a  preponderance   of   the
          We  went  on to note:  Given conflicting but legitimate
evidence on both sides, the court is bound to enter judgment  for
the party in whose favor the default has been entered.28  Thus the
defaulting  party was left to bear a heavy burden if  he  or  she
elected to later challenge allegations of the complaint that were
deemed admitted by default.  Because plaintiff had relied on  the
entry  of  default to establish its allegation that  Farr  was  a
partner,  and  because  plaintiff  had  not  been  permitted   an
opportunity  to rebut Farrs evidence disproving the  partnership,
we reversed and remanded.29
          Hicks  contends  that Syndoulos was  only  intended  to
permit  the  trial court to have a limited ability  to  focus  on
liability  issues.  He argues that by applying Syndoulos  to  the
default  hearing on property distribution, the court divided  the
property and debts solely on the basis of Pleasantss testimony.
          Hickss  contention  concerning how  the  court  applied
Syndoulos has merit.  In the final property division Master Brown
          Because this  has  been a contested
                    default           divorce
                    consideration   of    the
                    facts  and law  has  been
                    based  on  the  Syndoulos
                    rule . . .  except in the
                    particular      instances
                    noted  below,  while  Mr.
                    Hicks  may have  disputed
                    various  parts   of   Ms.
                    Pleasants testimony,  her
                    testimony has been  given
                    the     greater    weight
                    because,   as  noted   in
                    Syndoulos,     if     the
                    evidence offered  by  the
                    defaulted  party   merely
                    tends  to  show  that  an
                    allegation is  not  true,
                    then  the allegation must
                    be taken as true.
          The Syndoulos standard of weighing conflicting evidence
in  favor  of the non-defaulting party serves as a mechanism  for
circumscribing  attempts  by  a defaulted  party  to  attack  the
validity  of  the  allegations considered proven  by  the  partys
default.  In Syndoulos, this standard was applied and directed at
the question of liability as it arose in the context of a damages
hearing.  Nowhere, however, have we held that this standard  also
applies  to  factual questions that are not pled in the  original
          complaint, or to a determination of damages in cases where a
hearing is required to determine damages.30
          Pleasants suggests that this courts decision in  Snyder
v.  American  Legion  Spenard Post No. 2831  requires  Syndouloss
application in damages actions.  But Snyder, at most, extends the
Syndoulos  rule  to  cases involving liability for  specifically-
alleged  amounts of damages or where the questions  of  liability
and damages are intertwined.  In Snyder, Post 28 alleged that its
finance  officer, Snyder, wrote 144 checks payable to himself  in
the  amount of $111,522 and failed to provide an accounting.  The
Post  sued  Snyder for misappropriation of these  funds.32   When
Snyder  failed  to appear for trial, the superior  court  entered
summary  judgment  against him based on an  earlier  motion  that
Snyder  had  failed to oppose.33  On appeal,  we  held  that  the
judgment  was proper because Snyders failure to appear  at  trial
meant that he was a defaulting party under Civil Rule 55(c)(1) to
whom  no  further notice was owed.  Moreover, because the damages
claim  satisfied the sum certain criterion, no hearing on damages
was required.34  In reaching this conclusion we explained that the
Syndoulos could not possibly be rebutted standard would apply  if
there  had  been a damages hearing because this  is  in  part  an
accounting action in which liability and damages are inextricably
intertwined.35   We  explained  that  there  was  a  well-pleaded
allegation   that  Snyder  fraudulently  embezzled  each  of  the
checks, and that there was also some evidence that not all of the
checks   represented  fraudulent  transactions.   Employing   the
Syndoulos  standard, we concluded that the evidence  of  lack  of
fraud  was  not  uncontroverted evidence and was insufficient  to
overcome a default.
          Unlike  Syndoulos, Hickss default status did not  arise
from  a  civil action where liability was at issue.   And  unlike
Snyder, this is not a case in which damages for a sum certain are
claimed  or  where  the questions of liability  and  damages  are
inextricably intertwined.  This case instead concerns a party who
defaults to a divorce proceeding and then desires to contest  the
parameters of a subsequent property division.  We view  these  as
distinctly  different  inquiries, and  hold  that  where  marital
property  remains  to  be  divided,  a  partys  default  to   the
underlying   divorce   action   does   not   trigger   Syndouloss
applicability to the property division.
          We  have for decades articulated a well-defined  three-
step  process  that courts must engage in when dividing  property
upon divorce.36  We therefore conclude that regardless of default,
the  trial  court must (1) determin[e] what property is available
for  distribution; (2) valu[e] the property; and  (3)  allocat[e]
the property equitably.37  Syndoulos does not change either partys
burden  of  proof, and the trial courts role as fact  finder,  in
this distribution process.38
          A review of the record indicates that the court applied
Syndoulos  in  reaching  its findings and recommendations  on  at
least  five  disputed property issues.39  On each, we  find  this
application to be problematic.
          (1)  The trust withdrawal
            The court characterized an $88,500 withdrawal made by
          Pleasants from Pleasantss personal trust fund as a loan to the
marriage   and  therefore  as  a  marital  liability.    Evidence
presented  on the issue was confined to the conflicting testimony
of  the  parties.  Hicks objected to the characterization of  the
money  as  a  loan.  He asserted that one-half of the funds  were
used   to   support  Pleasantss  separate  business   enterprise.
Pleasantss  testimony revealed that the money was taken  out  for
the  couple  to  live on, that the purpose of the trust  was  for
investments or [my] personal savings, and that the trust  limited
the  types  of  things she could use the monies  for.   Pleasants
further  testified  that documents existed  which  discussed  the
trust  fund,  interest  rates, and other  details,  but  did  not
provide any documentary evidence to the court.  She conceded that
Hicks  did  not  sign any document pertaining  to  terms  of  the
withdrawal or reimbursement.
          The characterization  of   property   as   marital   or
               separate is largely a legal conclusion, but it  is
               based on facts.40  In ultimately characterizing the
               money as a marital liability, the court found that
               [w]hile  Mr. Hicks says the $88,500 amount  really
               does  not involve a debt owed by Ms. Pleasants  to
               her trust, the Syndoulos rule is controlling   . .
               .  and so that is regarded as a debt.  In applying
               Syndoulos, the court afforded Pleasantss testimony
               on  the issue greater weight than it may otherwise
               have   deserved.             (2)    The   Mat-Maid
               business debt
          The  courts  order also characterized a  $150,000  debt
arising  out  of  a  failed  Mat-Maid  investment  by  Pleasantss
business  as a marital liability.  The court found that Pleasants
was a twenty percent partner in the business Heritage Properties,
LLC,  that  Pleasants owed $150,000 for her share of  a  business
note,  and  that Hicks co-signed on the note because he  was  her
spouse  .  .  .  [o]therwise, his doing so does not  reflect  any
ownership,  management or other interest in  the  business.   The
court further found that Hicks would not receive any income  from
the  business.  In reaching his conclusions on this issue, Master
Brown  found  that  Syndoulos . . . applied as to  including  Ms.
Pleasants $150,000 Mat-Maid debt in the overall mix, because  Mr.
Hicks  was a signatory on the note, and thus his liability cannot
be ignored.
          Similar  to  the  findings with respect  to  the  trust
withdrawal,  the court invoked Syndoulos in making determinations
regarding  the Mat-Maid debt.  There are no independent  findings
as  to  the  evidence  presented or to  either  partys  intent.41
Additionally, it is unclear from the record why the  court  found
that while Hicks maintained no interest in the business and would
not  derive any affirmative benefit from it, his signature on the
underlying  note was sufficient to characterize  the  note  as  a
marital debt.42
          (3)  The Anchorage condominium
          Throughout  the  hearing Hicks objected  to  Pleasantss
valuations of various household personal items and the  value  of
an Anchorage condominium.
          Where  a  party identifies a significant marital  asset
but  presents no evidence as to its value, the best  practice  is
for  the  trial  court to direct the parties, or  the  delinquent
party  having  best access to the proof, to fill the  evidentiary
void.43  [It] is the duty of the parties, not the court, to ensure
that  all  necessary  evidence is before  the  court  in  divorce
proceedings.44  The parties presented little documentary evidence
of  the  condominiums value at the hearing, and the evidence  was
limited primarily to their testimony.
          In his original property distribution spreadsheet filed
in  court, Hicks listed the value of the Anchorage condominium at
$215,300.   Pleasants testified that the value of the condominium
was $250,000 and listed that amount on her property  spreadsheet.
She  conceded the tax assessment of the home listed the  property
at  $215,300.   In  determining the value of the condominium  the
court  found  that [i]n light of their conflicting testimony  and
the  Syndoulos  rule  Ms.  Pleasants  testimony  is  regarded  as
convincing  that  the condo . . . has a present  value  of  about
          It  is plainly within the trial courts province to make
factual determinations based on witness credibility.45  By relying
on Syndoulos, however, the court afforded Pleasantss testimony on
the issue greater weight than it may otherwise have deserved.
          (4)  Distribution and valuation of the parties personal
          The  court found that Pleasantss valuations of  various
items of personal property would be used taking into account  the
Syndoulos  rule  and  in light [of] Mr. Hicks  not  proving  that
[Pleasantss  valuations]  are high or unreasonably  high.46   The
courts  final  order  applied Syndoulos in valuing  and  awarding
various items of personal property to Pleasants upon her request.
The  record  does  not  reflect whether the  court  independently
weighed the evidence or evaluated the credibility of either party
in its findings on these issues.
          (5)  Award of the post office box to Pleasants
          The parties had shared the use of a post office box  in
Anchorage.  The court awarded Pleasants the P.O. box because  she
wants  it  and  in  light  of  the Syndoulos  rule  that  is  not
          In  light  of  the  foregoing, it is evident  that  the
courts   application  of  Syndoulos  precluded  a  complete   and
independent  consideration  of the  evidence  in  characterizing,
valuing, and distributing the property of the parties on at least
five matters.

     C.    Hicks Was Not Denied Due Process.
           Hicks  asserts that he was denied due process  of  law
because  he did not have notice of the amounts claimed  from  the
pleadings  and  he  was  not given an  opportunity  to  have  his
testimony  considered at the hearing.  To the extent that  Hickss
argument is that the judgment was outside the prayer for  relief,
we rejected this argument above and hold that the language in the
prayer for relief served to place Hicks on notice that the  court
would  consider all property and debts of the parties.  Moreover,
the record does not support Hickss claim that he was not afforded
the  right to participate in the hearing.  Hicks was notified  of
and attended the originally scheduled June hearing.  Master Brown
informed Hicks of his right to counsel and postponed the  hearing
over six weeks in order to allow the parties time to prepare  and
gather  evidence.  Master Brown informed the parties they  should
be   prepared  to  discuss  real  issues,  property,  debts,  any
retirement to be divided . . . .  Hicks testified.  Hicks  cross-
examined  Pleasants.  Master Brown questioned Hicks with  respect
to  nearly  every  item  listed on Hickss  property  spreadsheet.
Master   Brown  afforded  Hicks  the  opportunity  to   introduce
exhibits,  make  closing  remarks, and to  raise  any  additional
          Thus,  because the complaint placed Hicks on notice  of
the  property  adjudication,  and because  he  was  afforded  the
opportunity to collect and introduce evidence, testify, and cross-
examine  Pleasants,   Hickss argument on this  point  is  without
          Because  the  language  in the prayer  for  relief  was
sufficient  to put Hicks on notice that the court would  consider
all  assets and debts of the parties in adjudicating the property
rights  of the parties, the court properly exercised jurisdiction
in  dividing  the  marital estate.  However  because  the  courts
application  of Syndoulos was incorrect as a matter of  law,  and
because   the  record  lacks  independent  findings  that   might
otherwise support the courts conclusions, we VACATE the  property
division  order  and  REMAND  to  the  trial  court  for  further
proceedings consistent with this opinion.47

     1     See Kennecorp Mortgage & Equities, Inc. v. First  Natl
Bank of Fairbanks, 685 P.2d 1232, 1236 (Alaska 1984).

     2    Melendrez v. Bode, 941 P.2d 1254, 1256 (Alaska 1997).

     3     Lovell  v.  Lovell, 645 P.2d 151, 152  (Alaska  1982).
Accord Cook v. Rowland, 49 P.3d 262, 264 (Alaska 2002).

     4    Leis v. Hustad, 22 P.3d 885, 887 (Alaska 2001).

     5     When  an application for default is made under  Alaska
Civil  Rule  55,  a trial court must exercise its  discretion  in
determining  whether  a judgment should be  entered.   Peter  Pan
Seafoods,  Inc.  v. Stepanoff, 650 P.2d 375, 378  (Alaska  1982).
While Hicks did not contest the entry of default or request  that
the  court  set the default aside, we recognize that he  was  not
represented  by counsel. We have held that a trial  judge  should
inform  pro  se litigants of the proper procedure for the  action
they are attempting to accomplish.  Breck v. Ulmer, 745 P.2d  66,
75  (Alaska  1987).  Civil Rule 55(e) provides  that  [f]or  good
cause  shown  the court may set aside an entry of default.   Good
cause is a question of equity left to the discretion of the trial
court upon showing of a meritorious defense.  Hertz v. Berzanske,
704  P.2d  767, 771 (Alaska 1985) superseded by statute on  other
grounds  as  noted  in McConkey v. Hart, 930 P.2d  402,  407  n.4
(Alaska 1996).  In this case Hicks arrived at the June hearing  a
few  minutes late.  He promptly informed the court that while  he
had  agreed to be defaulted to the divorce, he did not intend  to
stipulate  to  the  values of any of the property  and  debts  at
issue.   In light of the relative ease of setting aside a default
and  Hickss status as a pro se litigant, we note that  the  court
could  have construed Hickss statements as a request to set aside
the default.

     6      Alaska Civil Rule 60(b) provides, in 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  [if] . . . the judgment is void. A judgment  is  void
where the defendant was not given proper notice of the action and
opportunity to be heard   . . . or where there was a  failure  to
comply  with  such requirements as are necessary  for  the  valid
exercise  of  power by the court.  Rowland v.  Monsen,  135  P.3d
1036, 1038 (Alaska 2006).

     7     Melendrez,  941  P.2d  at  1256-57;  46  Am.  Jur.  2d
Judgments  296 (1964).

     8     46  Am.  Jur. 2d Judgments  296 (1964).  See also  10A
Charles  A.  Wright, Arthur R. Miller & Mary  Kay  Kane,  Federal
Practice  and Procedure  2663 (1st ed. 1983); Brown v. Lange,  21
P.3d 822, 825 (Alaska 2001) ([I]n interpreting our civil rules we
have   often   looked  to  identical  federal  counterparts   for

     9     Valley Hosp. Assn, Inc. v. Brauneis, 141 P.3d 726, 728
(Alaska 2006) (quoting 10A Federal Practice and Procedure  2688).

     10     Rule 55 provides for judgment by the clerk under 55(b)
only  where the claim is for a sum certain, and judgment  by  the
court  under  55(c)  in  all  other cases.   Rule  55  states  in
pertinent part:
          (b)(1)  Failure to Appear.  If the  defendant
          has  been defaulted for failure to appear and
          the  plaintiffs claim(s) is for a sum certain
          or  for a sum that can by computation be made
          certain,  upon  the filing of an  application
          for  default  judgment . . . the clerk  shall
          enter default judgment for the amount due . .
          . .
          . . . .
          (c)(1)  In all other cases the party entitled
          to  a  default  judgment shall apply  to  the
          court  therefor. . . . If the  party  against
          whom  default judgment is sought has appeared
          in  the  action, that party . .  .  shall  be
          served with written notice of the application
          for  judgment. . . . If, in order  to  enable
          the  court to enter judgment or to  carry  it
          into  effect,  it  is necessary  to  take  an
          account or to determine the amount of damages
          or  to establish the truth of any averment by
          evidence or to make an investigation  of  any
          other  matter,  the court  may  conduct  such
          hearings or order such references as it deems
          necessary and proper.
          . . . .
          (c)(3) If the amount of damages claimed in an
          application to the court for default judgment
          is  unliquidated,  the applicant  may  submit
          evidence  by affidavit showing the amount  of
          damages  and  if,  under  the  provisions  of
          paragraph (1) of this subdivision, notice  of
          the  application  is necessary,  the  parties
          against  whom judgment is sought  may  submit
          affidavits in opposition.
     11    370 P.2d 902 (Alaska 1962).

     12    Id. at 904

     13    Id.

     14    Id. at 904-05.  While Rhodes was not a default judgment
case, its recognition of the courts authority to make a fair  and
just  disposition  of  the property rights  of  parties  where  a
defendant  is  aware of the need to adjudicate  those  rights  is
equally applicable here.

     15    Cassell v. Sullivan, Roche & Johnson, 90 Cal. Rptr. 2d
899, 903 (Cal. App. 1999).

     16    Civil Rule 90.1(e) provides: In divorce cases involving
property division disputes . . . the parties shall file and serve
. . . 5 days before trial is scheduled to begin . . . (1) a list,
including  a  brief description of all assets and liabilities  of
the parties, whether owned jointly or individually . . . .
     17    377 P.2d 1001 (Alaska 1963).

     18    Id. at 1003.

     19    Id. at 1002.

     20    Id.

     21    Id.

     22    Hicks cites Fehlhaber v. Fehlhaber, 681 F.2d 1015 (5th
Cir.  1982),  as  authority for the proposition  that  a  default
judgment that exceeds the amount specified in the complaint  must
be  reduced.  However, California has subsequently rejected  this
approach.  See In re Marriage of Andresen, 34 Cal. Rptr. 2d  147,
152-53  (Cal. App. 1994) (noting due process satisfied in marital
dissolution action where petitioner checked box on standard court
form  indicating type of relief requested; no greater specificity

     23    662 P.2d 109, 112 (Alaska 1983).

     24    Id. at 110.

     25    Id. at 110-11.

     26    Id. at 111.

     27    Id. at 112.

     28     Id. (quoting In re West Sec. Litigation, 436 F. Supp.
1281, 1289 (N.D. Cal. 1977)).

     29    Id. at 113.

     30    No hearing on damages is required when damages are for
a  sum  certain  or  for a sum that can by  computation  be  made
certain,  Alaska  R.  Civ. P. 55(b)(1), or where  the  amount  of
damages claimed is not unliquidated.  Alaska R. Civ. P. 55(c)(3).

     31    119 P.3d 996 (Alaska 2005).

     32    Id. at 997.

     33    Id. at 997-98.

     34    Id. at 1002.

     35    Id. at 1002 n.8.

     36     See  Wanberg  v. Wanberg, 664 P.2d 568,  570  (Alaska
1983).   See also Inman v. Inman, 67 P.3d 655, 659 (Alaska 2003);
Faulkner  v.  Goldfuss, 46 P.3d 993, 996 (Alaska 2002);  Root  v.
Root, 851 P.2d 67, 68 (Alaska 1993); Carlson v. Carlson, 722 P.2d
222, 223-24 (Alaska 1987).

     37    Faulkner, 46 P.3d at 996.

     38    If the [equitable distribution issue] does go to trial,
the  parties  are entitled to a full hearing at  which  they  can
present their case to the judge.  Even if one party defaults, the
court  must  still grant a hearing and base the decision  on  the
evidence  presented.  Brett R. Turner, Equitable Distribution  of
Property  3:15, at 171 (3d ed. 2005).

     39     While  the  order makes clear that the court  invoked
Syndoulos  with  regard  to  the five specific  issues  discussed
below,  the ruling also indicates that other disputed credibility
determinations  were also resolved in Pleasantss  favor  on  that
basis: [C]onsideration of the facts and law has been based on the
Syndoulos rule. . . therefore, except in the particular instances
noted  below, while Mr. Hicks may have disputed various parts  of
Ms. Pleasants testimony, her testimony has been given the greater

     40     See  Schmitz v. Schmitz, 88 P.3d 1116,  1122  (Alaska

     41    See Nicholson v. Wolfe, 974 P.2d 417, 423 (Alaska 1999)
(parties  may  by  their  actions  demonstrate  intent  to  treat
separate property as marital).

     42     While  Pleasants assumed this debt  in  the  ultimate
property  division, the court included it as part of the  marital

     43    Root v. Root,  851 P.2d 67, 69 (Alaska 1993).

     44    Id.

     45     See Berg v. Berg,  983 P.2d 1244, 1248 (Alaska 1999).

     46     The parties disputed the value of household items  in
both  the  Anchorage  condominium and their Girdwood  home.   For
example,  Pleasants valued a freezer in the Anchorage condominium
at $1,200, a cd collection at $3,000, and tools at $1,000.  Hicks
valued  the freezer at $500, the cds at $1,500, and the tools  at

     47    We remand for new findings under the proper standard as
set  forth above and recognize that the court may be required  to
direct both parties to provide supplemental evidence.  The  court
may  also require a re-hearing of all or a select number  of  the
issues.   However, we leave to the trial court the discretion  to
determine  the  extent  of  further  proceedings  and  additional
evidence that may be needed.

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