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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Richard v. Boggs (07/20/2007) sp-6141

Richard v. Boggs (07/20/2007) sp-6141, 162 P3d 629

     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


KEITH W. RICHARD, )
) Supreme Court No. S- 12138
Appellant, )
) Superior Court No. 4FA-02-2897 CI
v. )
) O P I N I O N
ROBIN J. BOGGS, f/k/a ROBIN )
RICHARD, ) No. 6141 - July 20, 2007
)
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Charles R. Pengilly, Judge.

          Appearances:  John J. Connors, Law Office  of
          John   J.   Connors,  P.C.,  Fairbanks,   for
          Appellant.  Craig B. Partyka, Cook  Schuhmann
          & Groseclose, Inc., Fairbanks, for Appellee.

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

          EASTAUGH, Justice.

I.   INTRODUCTION
          Keith  W.  Richard and Robin J. Boggs agreed to  divide
their marital property at dissolution in a way that significantly
favored  Richard.   Applying  Alaska  Civil  Rule  60(b)(6),  the
superior  court  later  vacated the portion  of  the  dissolution
decree  that adopted their property division agreement.   Because
the  superior court did not abuse its discretion when it  vacated
that portion of the decree, we affirm.
II.  FACTS AND PROCEEDINGS
          Keith  Richard and Robin Boggs (formerly known as Robin
Richard)  separated  in  April 2002  after  twenty-one  years  of
marriage.   In  December 2002 they jointly  filed  a  dissolution
petition that included their agreement for dividing their marital
property.   This  original  property division  agreement  heavily
favored  Richard,  who took between sixty-eight  to  seventy-five
percent of the marital estate.1  Notably, the parties agreed that
Boggs  would assume responsibility for all the marital debts  and
that their most significant marital asset, their house, would  be
awarded solely to Richard.  They valued the house at $104,458.
          After  a  hearing, Standing Master Alicemary L. Closuit
issued  findings  of  fact  and  recommendations  regarding   the
dissolution petition.  Master Closuit found that [t]he  parties[]
agreements  regarding division of the assets of the marriage  and
division  of  the  debts of the marriage appear  to  be  patently
inequitable.  Accordingly, Master Closuit ordered the parties  to
provide  her  with a written statement that explained  why  their
agreement was fair and just under the circumstances.
          In   response,   the  parties  jointly  amended   their
agreement  to explain their rationale.  After stating that  their
top  priority  was  to  continue being good  parents  to  [their]
children  and  that  open communication  was  integral  to  their
success in that respect, they declared that any other division of
[their] assets and debts would hinder [their] ability to maintain
good communication[ ] in parenting [their] children.  The parties
also  declared  that  because they built their  house  for  their
children, they wanted to preserve their childrens ability to live
there.   Thus, with regard to how they would divide ownership  of
the house, they stated that
          If a 50/50 division of property were required
          in  this agreement, a mortgage would need  to
          be  placed on the house.  Given the uncertain
          future of Keiths employment,[2] neither of us
          are  willing to jeopardize the house  with  a
          lender in order to make this agreement appear
          more equitable.
          After  reviewing the parties amendment, Master  Closuit
concluded that the property allocations were just and recommended
them  for  approval  by the superior court.  In  March  2003  the
superior  court  agreed with Master Closuits  recommendation  and
issued  a  decree  of dissolution of marriage  that  adopted  the
proposed property division.
          About  one  year later, Boggs filed a motion to  reopen
the  dissolution  decree under Alaska Civil  Rule  60(b)(6);  she
alleged that the justifications for the disparate terms of  their
agreement had not come to pass.  She specifically argued that the
lopsided   division   of  assets  had  not   resulted   in   open
communication between the parties and that the parties assumption
that the house would be placed in jeopardy upon financing with  a
lender  [had]  proved incorrect because Richard could  afford  to
make  home  equity loan payments, partly because he  had  secured
employment  with the military.  Richard filed a pro se opposition
in which he argued that the property division was fair and should
be  upheld.   Master Closuit recommended that the superior  court
          grant Boggss Rule 60(b)(6) motion as a matter of law.  The
superior  court  eventually granted Boggss Rule  60(b)(6)  motion
without a hearing and vacated the property division.
          To resolve the parties now-unresolved property division
and  child  support  issues, Master Closuit held  an  evidentiary
hearing  in late 2004.  Although Rule 60(b)(6) relief had already
been  granted,  Master Closuit allowed both  parties  to  present
evidence  about  whether such relief was  appropriate  under  the
circumstances.   In  January 2005 Master  Closuit  submitted  her
findings of fact and recommendations to the superior court.   She
found  sufficient  evidence to vacate  under  Rule  60(b)(6)  the
portion  of  the  parties dissolution decree that  adopted  their
property  division  agreement and recommended  that  the  parties
assets be redistributed as provided in a spreadsheet she attached
to  her  recommendation.   On June 15, 2005  the  superior  court
issued   an   order   adopting  Master  Closuits   findings   and
recommendations.  The court distributed this order to the parties
on June 22.
          On  November  17,  2005 the superior court  distributed
various  Qualified Domestic Relations Orders (QDROs) relating  to
Richards  retirement accounts and issued a document titled  Final
Judgment granting Boggs $79,806.01.
          Richard  appeals the superior courts November 17,  2005
judgment.   He  filed  his notice of appeal with  this  court  on
November  23, 2005.  Boggs then moved to dismiss Richards  appeal
as  untimely;  an  individual justice of this  court  denied  her
motion  to dismiss.  We allowed Boggs to raise the issue  of  the
appeals timeliness in her appellees brief.
III. DISCUSSION
     A.   Standard of Review
          Richard  raises  four  main arguments  on  appeal.   He
challenges  the  courts decision to vacate  the  portion  of  the
parties  dissolution decree that adopted their property  division
agreement   under  Rule  60(b)(6)  because:   (1)  the  requisite
extraordinary circumstances do not exist; (2) relief  under  that
rule  is unavailable if any other Rule 60(b) clause applies,  and
Boggss claim falls under Rule 60(b)(1) or Rule 60(b)(3); and  (3)
setting aside the portion of the parties dissolution decree  that
adopted  their property division agreement will cause  him  undue
prejudice.  Richard also argues that the superior court erred  by
issuing  QDROs  that  treat his retirement  accounts  as  marital
property  because the parties waived their rights to each  others
retirement accounts.
          We  review for abuse of discretion the superior  courts
order  reopening  the  parties  dissolution  decree  under   Rule
60(b)(6).3   [R]elief from a judgment is addressed to  the  sound
discretion of the trial court and [the] courts ruling will not be
disturbed  except  upon a showing of abuse  of  discretion.4   An
abuse of discretion occurs when we are left with the definite and
firm  conviction on the whole record that the judge  had  made  a
mistake.5
     B.   Richards Appeal Is Timely.
          On  June  15, 2005 the superior court issued  an  order
that   adopted  Master  Closuits  findings  and  recommendations,
          including her recommendation that the portion of the parties
prior  dissolution  decree that adopted their  property  division
agreement  be  vacated under Rule 60(b)(6) and that  the  parties
assets  be valued and distributed as provided in Master  Closuits
findings.  Boggs argues that because the superior courts June  15
order  resolved all issues in the case and ordered  [Richard]  to
make  payment to equalize the property division, it was  a  final
judgment for purposes of appeal.  Boggs contends that, per Alaska
Rule  of Appellate Procedure 204(a)(1), the time for appeal began
to  run when the order was distributed to the parties on June 22.
Because Richard filed his appeal more than thirty days after June
22, Boggs argues that the appeal is untimely.
          Richard responds that the June 15 order was not a final
judgment  because  Master Closuits underlying findings  contained
unresolved  issues.   He thus observes that  Master  Closuit  was
unable  to resolve the question whether Richards military pension
should be valued at the parties separation, as is the practice in
Alaska, or whether federal law requires his pension to be  valued
at  the  date of the divorce.  Richard contends that the division
of  the  three  retirement accounts was  not  decided  until  the
superior  court  distributed  its QDROs  on  November  17,  2005.
Richard  asserts that the final judgment for purposes  of  appeal
was  the  document titled Final Judgment that the superior  court
entered in November with the QDROs.
          Appellate Rule 204(a)(1) requires a litigant to file  a
notice of appeal within thirty days from the date of the judgment
appealed from.  This time limit is not jurisdictional, and may be
relaxed  to  avoid  injustice.6   The  judgment  referred  to  in
Appellate Rule 204(a)(1) is the judgment that, per Civil Rule 58,
must  be  set  forth on a separate document and  that  is  to  be
entered  after  the  court  makes its decision.7   This  separate
document provision in Civil Rule 58 was added in 1983 to  prevent
any  uncertainty concerning the date a judgment becomes final and
effective,  for  the  purposes  of  determining  when  the   time
limitations for post verdict motions and appeals begins to  run.8
To determine whether a decision is a final judgment that triggers
the time limit for an appeal, the reviewing court should look  to
the  substance  and effect, rather than form,  of  the  rendering
courts  judgment.9  A final judgment is one that disposes of  the
entire case and ends the litigation on the merits.10
          Because  Master Closuit left open the question  whether
Richards  military  pension should be  valued  at  separation  or
divorce,  the  superior courts June 15 order that adopted  Master
Closuits  recommendations did not dispose  of  the  entire  case.
That  open  question  was not resolved until the  superior  court
distributed  its  QDROs on November 17.  On that  same  day,  the
court  also  distributed a separate Final Judgment that  complied
with  the  requirements of Civil Rule 58.  This step  would  have
been  redundant  and unnecessary if the superior courts  June  15
order  had  been the final judgment.  Because the Rule  204(a)(1)
clock  did  not begin to run until the superior court distributed
its  final  judgment  on November 17, 2005,  Richards  appeal  is
timely.
     C.   The Superior Court Did Not Abuse Its Discretion when It
          Vacated  the         Portion of the Parties Dissolution
          Decree  that  Adopted the Property  Division  Agreement
          Under Rule 60(b)(6).
          Rule  60(b) permits a court to relieve a party from  an
unjust final judgment.11  The superior court granted Boggss motion
to reopen the parties dissolution decree under Rule 60(b)(6).  It
also adopted Master Closuits January 4, 2005 findings of fact and
recommendations, including Master Closuits finding that there was
a sufficient evidentiary basis for Rule 60(b)(6) relief to Boggs.
          1.   The  superior  court did not abuse its  discretion
               when  it  ruled  that extraordinary  circumstances
               exist.
          In Schofield v. Schofield,12 we listed four factors that
may  establish  extraordinary circumstances that  justify  relief
from a dissolution decree under Rule 60(b)(6):
          (1) the fundamental, underlying assumption of
          the    dissolution   agreement   [has]   been
          destroyed; (2) the parties property  division
          was  poorly  thought out;  (3)  the  property
          division  was reached without the benefit  of
          counsel;  and  (4) the [asset in controversy]
          was the parties principal asset.[13]
As  we  have previously recognized, we have never held  that  all
four  factors  must be present for relief under Rule  60(b)(6).14
Instead,  we  view  these four factors as instantiations  of  the
equitable  factors  required to overcome the principle  that,  at
some point, litigation [must] be brought to an end. 15
          Master  Closuit found that extraordinary  circumstances
exist in this case because
          the fundamental underlying assumptions of the
          parties did not come to pass,[16] the division
          of  the assets was clearly inequitable[,] the
          parties   failed  to  list  many  of  [their]
          assets,  the marital residence is the largest
          asset  of  the  parties and was not  properly
          valued,  and  the  parties had  very  limited
          contact  and  advice  from  attorneys  before
          entering into their agreements.
The  superior  court adopted this finding in its June  15  order.
Richard argues that none of the four Schofield factors is present
and  that the superior court therefore abused its discretion when
it   determined  that  extraordinary  circumstances  exist.    We
disagree.
          Richard  first  argues that no fundamental,  underlying
assumptions of the parties property division agreement have  been
destroyed.   He contends that his fortuitous change in employment
post  decree and Boggss subjective disappointment with his  level
of communication are not extraordinary circumstances that justify
relief  under  Rule  60(b)(6).   But extraordinary  circumstances
exist  where  the  equity  of a property  division  agreement  is
destroyed  by the parties mutual mistake regarding one  of  their
          agreements fundamental, underlying assumptions.17  In Williams v.
Crawford, the parties based their property division agreement  on
their mutually mistaken belief that the wife would be eligible to
receive  the husbands pension survivorship benefits.18   We  held
that  those were extraordinary circumstances under Rule  60(b)(6)
because  the  wifes  eligibility for  the  husbands  survivorship
benefits was one of the fundamental assumptions underlying  their
property division.19
          The  parties here based their agreement to give Richard
outright ownership of their marital house on the assumption  that
if  they had divided their property equally Richard would need to
mortgage the house and thereby place himself in danger of  losing
it  to  a  third-party  lender.  This  assumption  was  mistaken.
Because  their  property  division agreement  did  not  call  for
Richard to buy out Boggss interest in the house, Richard did  not
need  to obtain a commercial mortgage that he might not have been
able  to  service.  Instead, Richard could have simply  issued  a
note  payable to Boggs to secure his obligation for the  property
division.  This would have avoided any danger of losing the house
altogether.  The parties did not face an inherent risk of  losing
the  house that they built for their children.  The equity of the
parties agreement was destroyed by their mutual mistake regarding
this fundamental, underlying assumption.
          Furthermore,  the  parties property division  agreement
was   poorly  thought  out  because  it  failed  to  dispose   of
substantial  items of marital property.20  The  parties  property
division  agreement allocated between $187,032  and  $199,147  of
their  marital  estate but did not include at  least  $17,373  of
marital assets and $963 of marital debts.  Given that the parties
poorly  thought-out agreement was reached without the benefit  of
counsel, disposed of the parties principal asset21 (their marital
home),  and  was  inequitable because the parties  were  mutually
mistaken  regarding one of the agreements fundamental, underlying
assumptions,  we  cannot say that the superior court  abused  its
discretion  in  ruling  that Boggss  claim  for  relief  met  the
standards of Rule 60(b)(6).
          2.    Boggss claim does not fall under any other clause
of Rule 60(b).
          A  party  may  only obtain Rule 60(b)(6) relief  if  no
other  Rule  60(b)  clause applies.22  Richard argues  that  Rule
60(b)(6)  relief is unavailable to Boggs because her claim  falls
under either Rule 60(b)(1) or Rule 60(b)(3).
          Rule 60(b)(1) permits the court to relieve a party from
a  judgment  for  mistake, inadvertence,  surprise  or  excusable
neglect.   Richard argues that Boggss Rule 60(b)(6) motion  falls
under  clause  (1)  because it is based on Boggss  mistake  about
Keith being able to financially afford the house.  Boggs responds
by  arguing  that  her motion does not fall under  Rule  60(b)(1)
because  the mistake at issue here was a mutual mistake  and  not
Boggss  unilateral mistake; her claim therefore falls under  Rule
60(b)(6).
          We have stated that
          Alaska  case  law  does not clearly  pinpoint
          which   claims   for  relief   are   properly
          cognizable under Rule 60(b)(1).  However,  it
          appears  that when a party is seeking  relief
          due  to  the  movants mistake or neglect  the
          claim falls under Rule 60(b)(1); but when the
          parties are mutually mistaken the claim falls
          under Rule 60(b)(6).[23]
As  Boggs observes, the language of the agreement indicates  that
it  represented their mutually held beliefs.  The parties  belief
that Richard needed to mortgage their home if their property  was
divided  equally  was therefore a mutual mistake.   The  superior
court  did not abuse its discretion by ruling that Rule  60(b)(1)
does not apply.
          Rule 60(b)(3) permits a court to relieve a party from a
judgment for fraud, misrepresentation, or other misconduct of  an
adverse  party.   Richards theory for arguing that  Boggss  claim
falls  under Rule 60(b)(3) is that if [Boggss] claim is that  she
was   pressured  (or  subjectively  felt  coerced)  to  sign  the
Dissolution Agreement to maintain good communication  with  Keith
about  the  children[ ], she is asserting a Rule 60(b)(3)  claim.
But  Boggs  has  never  claimed that she was  pressured  or  felt
coerced to sign the dissolution agreement.  In fact, Boggs points
out  that Master Closuit specifically found that [Richard]  never
pressured  [Boggs] to draft or prepare or sign the amendment  [to
the]  agreement.  We are therefore unpersuaded that Boggss  claim
falls under Rule 60(b)(3).
          3.   Richard  did not suffer undue prejudice  from  the
               superior   courts                grant   of   Rule
               60(b)(6) relief.
            Richard  contends that the superior court abused  its
discretion when it failed to consider the prejudice to  him  when
it  decided Boggss Rule 60(b)(6) motion.  He asserts that he  was
prejudiced  in  three  ways.   First,  he  argues  that  he   was
prejudiced when the superior court revalued the parties house  at
its  fall  2004  value, even though the parties agreed  that  the
house  would  be valued at the date of separation  (April  2002).
Second, he argues that he was prejudiced when the superior  court
ordered him to split with Boggs $12,000 of income he earned  post
separation.   Third,  he argues that he was prejudiced  when  the
superior  court  ordered  him to split  his  pension  with  Boggs
despite  the  parties reciprocal waiver of rights to each  others
retirement accounts.
          In   deciding   Rule  60(b)(6)  motions,  courts   give
consideration to the following factors:  the prejudice,  if  any,
to  the  non-moving  party if relief from  judgment  is  granted,
whether  any  intervening equities make the  granting  of  relief
inappropriate,   and   any   other  circumstances   relevant   to
consideration of the equities of the case.24  Courts must balance
the interest in the finality of judgments against the interest in
granting  relief  from judgment when justice so  requires.25   In
doing  so, courts should liberally construe Rule 60(b)(6)  to  do
justice where extraordinary circumstances demand it.26
          Richard has not suffered undue prejudice.  Contrary  to
Richards  contention,  the superior court  did  not  revalue  the
          parties house at its fall 2004 value; the court established the
proper  value  of the house as of the time of the  parties  April
2002  separation.  Furthermore, Richards pension and the  $12,000
of income he received post-separation were marital property.  The
prejudice that Richard allegedly suffered was therefore caused by
a  series  of superior court decisions that stripped him  of  the
windfall he received from the parties poorly thought-out property
division agreement.   Because Richard presented no evidence  that
he  would  suffer unfair prejudice if the portion of the  parties
dissolution  decree  that  adopted  their  property  division  is
vacated, the superior court did not abuse its discretion when  it
granted Boggss Rule 60(b)(6) motion.
     D.    The  Parties Reciprocal Waiver of Rights Is No  Longer
Operative.
          Finally,   Richard  argues  that  the  superior   court
committed  clear  error  when  it issued  QDROs  that  classified
Richards  retirement  accounts as marital  property  despite  the
parties  reciprocal  waiver of rights to each  others  retirement
accounts.   Richard  points  to  no  authority  to  support   his
contention  that  the parties original waiver of rights  survived
the grant of Rule 60(b)(6) relief.  Because the court vacated the
parties   entire  property  division  agreement,   the   original
reciprocal waiver of rights is no longer operative.
IV.  CONCLUSION
          The  superior  court did not abuse  its  discretion  by
granting  Boggss motion for Rule 60(b)(6) relief.   We  therefore
AFFIRM.
_______________________________
     1      There  is  differing  evidence  regarding  the  exact
percentage  that  Richard took of the  marital  estate.   Of  the
property  listed  in  the  original property  division  agreement
(including  real  property, personal property,  debts,  and  nine
miscellaneous financial accounts), Richard took $149,135  of  the
net  total of $199,147, or seventy-five percent.  The summary  of
their  agreement that the parties later prepared, however,  lists
Richard  as taking $127,061 of the total of $187,032,  or  sixty-
eight percent.

     2     The  uncertain future clause referred to the uncertain
status  of  Richards continued employment with the United  States
Army when the parties entered into their agreement.

     3     Alaska  Truck  Transp., Inc.  v.  Inter-Alaska  Credit
Serv., Inc., 397 P.2d 618, 61920 (Alaska 1964).

     4     Id.;  see  also Morris v. Morris, 908  P.2d  425,  427
(Alaska 1995).

     5     Juelfs  v.  Gough,  41  P.3d 593,  596  (Alaska  2002)
(quotation omitted).

     6     In  re  Adoption of Erin G., 140 P.3d 886, 889 (Alaska
2006)  (citing  Isaacson Structural Steel Co., Div.  of  Isaacson
Corp.  v. Armco Steel Corp., 640 P.2d 812, 815 n.8 (Alaska  1982)
(holding  that  requirement of timely notice  of  appeal  is  not
jurisdictional   and  can  be  relaxed  to  avoid   surprise   or
injustice)).

     7     Schneider  v.  PayN Save Corp., 723  P.2d  619,  62223
(Alaska  1986) (holding that formal judgment entered on  separate
document  triggered appeal process, even though summary  judgment
was awarded much earlier).

     8    Id. (quotation omitted).

     9     Denali  Fed. Credit Union v. Lange, 924 P.2d 429,  431
(Alaska 1996) (citations omitted).

     10    Mattfield v. Mattfield, 133 P.3d 667, 673 (Alaska 2006)
(citations omitted).

     11     Lacher  v.  Lacher, 993 P.2d 413, 418  (Alaska  1999)
(citations  omitted) (holding divorce decree properly  set  aside
because  it  failed to dispose of substantial  items  of  marital
property).

     12     Schofield  v.  Schofield, 777 P.2d 197,  202  (Alaska
1989).

     13     Lowe  v.  Lowe,  817 P.2d 453,  45859  (Alaska  1991)
(quoting Schofield, 777 P.2d at 202).

     14    Williams v. Crawford, 982 P.2d 250, 25556 (Alaska 1999)
(citation omitted).

     15     Clauson v. Clauson, 831 P.2d 1257, 1261 (Alaska 1992)
(quoting Lowe, 817 P.2d at 459).

     16      Master   Closuit  explained  that  the   fundamental
underlying assumptions of the parties agreements did not come  to
pass  because  [Richard] was unable and unwilling to  openly  and
freely  communicate with [Boggs] even regarding the children  and
his  income  earning capacity proved to be neither uncertain  nor
less  than  adequate  to pay [Boggs] an equitable  share  of  the
marital estate.

     17    Williams, 982 P.2d at 255.

     18    Williams v. Crawford, 982 P.2d 250, 255 (Alaska 1999).

     19    Id. at 256.

     20    See Lacher, 993 P.2d at 41920.

     21    See Foster v. Foster, 684 P.2d 869, 87172 (Alaska 1984)
(holding  that  poorly  thought-out property  division  based  on
assumption  parties would continue to live in marital home  after
dissolution  was  properly set aside when that assumption  proved
unworkable because underlying assumption of property division was
destroyed,  division was reached without benefit of counsel,  and
marital residence was principal asset).

     22    Lacher, 993 P.2d at 419.

     23    Williams, 982 P.2d at 255 (citations omitted) (holding
that  claim  for  relief based on parties mutual misunderstanding
regarding  wifes  ineligibility for survivorship  benefits  falls
under Rule 60(b)(6)).

     24     Norman v. Nichiro Gyogyo Kaisha, Ltd., 761 P.2d  713,
717 (Alaska 1988).

     25    Id.

     26    Id. at 715.

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