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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Powell v. Powell (10/10/2008) sp-6314

Powell v. Powell (10/10/2008) sp-6314, 194 P3d 364

     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

REBECCA POWELL, )
) Supreme Court No. S- 12532
Appellant,)
) Superior Court No. 3AN-04- 11788 CI
v. )
) O P I N I O N
DENNIS POWELL, )
) No. 6314 October 10, 2008
Appellee.)
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sharon L. Gleason, Judge.

          Appearances:  G.R. Eschbacher, Anchorage, for
          Appellant.   Dorothea G.  Aguero,  Anchorage,
          for Appellee.

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

          PER CURIAM

I.   INTRODUCTION
          Dennis  and  Rebecca Powell divorced in December  2004.
They  jointly agreed to a proposed division of their  assets  and
this  division was incorporated in the superior courts decisions.
Ten  months  after the divorce, Rebecca filed a Civil Rule  60(b)
motion  for  relief from the property division.  After conducting
an  evidentiary  hearing,  the  superior  court  denied  Rebeccas
petition.  We affirm because the superior court did not abuse its
discretion in so ruling.
II.  FACTS AND PROCEEDINGS
Dennis   and   Rebecca   Powell   have   married   and   divorced
twice.   They  originally  married in 1992.   The  two  divorced,
reconciled, and resumed living together in 1993.  They  were  re-
married  in  1994.   In 2004 they divorced again.   They  had  no
children  together, but both have children from prior  marriages.
At  the  time  of the second divorce, Dennis was retired,  having
left  his  job  at the Federal Aviation Administration  in  2002.
Rebecca is a realtor.
          Approximately  ten  months  after  the  2004   divorce,
Rebecca  filed  a  Civil Rule 60(b) motion for  relief  from  the
property  division.   While  the  parties  dispute  many  of  the
relevant facts, Rebecca argued in her Rule 60(b) motion that  the
allocation  was based on a mistake and was the result  of  duress
and oppressive conduct.
     A.   Marital Assets and the Property Division
          The  couples  primary assets, owned either  jointly  or
individually,  consisted  of a home  in  Anchorage,  a  cabin  in
Sterling,  a  cabin  in  Rainbow Shores, and  Denniss  retirement
account.   The  two  also, jointly or individually,  had  various
debts,  the  most  sizable of which were  two  mortgages  on  the
Anchorage home and credit card debt.
          As  part of their petition for dissolution of marriage,
Dennis  and  Rebecca jointly submitted a proposed  allocation  of
property.   The  superior  court  accepted  this  allocation  and
incorporated it into its findings of fact and conclusions of  law
and  its  decree  of  divorce.  Dennis and Rebecca  reached  this
property  division after negotiations via telephone  and  e-mail.
Rebecca explains that the negotiations mainly concerned two items
consisting of who would be responsible for the $100,000.00 second
mortgage on the Anchorage home and how the credit card debt would
be divided.
          Both  parties retained attorneys and indicated on their
proposed  property  division form that they  had  received  legal
advice.   However,  the two negotiated and reached  the  division
largely, if not entirely, on their own.  In an October 20, 2004 e-
mail  to  Dennis, Rebecca stated, I REALLY want to work this  out
without attorneys  it would give each of us, immediately, most of
our $3500 [retainer] back.  Rebecca claims that she contacted her
attorney  after  she  and  Dennis reached  a  tentative  property
division,  but that she declined to send her attorney a  copy  of
the draft agreement.1
          Dennis  owned the home in Anchorage before the marriage
and  retained title solely in his name during the marriage.2  The
two  valued  the  property at $395,000.  It was  subject  to  two
mortgages: a first mortgage of $160,000 and a second mortgage  of
$100,000.   Rebecca  received  the house  subject  to  the  first
mortgage.  According to the property division form, the two split
the  second mortgage, but provided that it would be paid off from
the sale of the house.3
          The  two jointly owned the cabin in Sterling and valued
it  at  $400,000.  The second mortgage on the Anchorage home  was
largely spent on the Sterling cabin.  Dennis received the  cabin.
Rebecca  alleged  that it was her understanding  that  the  cabin
would always be available for their children from prior marriages
          and that the children would inherit the property.  Rebeccas
understanding was not included in the written property division.
          Finally,  the  two  jointly owned a  cabin  in  Rainbow
Shores.   They  valued  it at $86,000 and  evenly  allocated  its
ownership  upon  divorce.  They agreed to sell the  property  and
equally divide the proceeds.
          During  the  negotiations, neither  party  obtained  an
estimate  of  the  present value of Denniss  retirement  account.
However,  they both knew, or should have known, the size  of  the
annual  retirement salary that Dennis was receiving and  that  he
would  be  receiving  these checks for the  rest  of  his  life.4
Rebecca asserted that the marital portion of the account  has  an
estimated present value of $730,000.5  Dennis received the entire
retirement account in the settlement.6
          Rebecca and Dennis also divided their credit card debt.
While Rebecca claimed that she had been paying some of his credit
cards, the property allocation agreement does not include such  a
requirement.   As  Dennis explained the agreement,  many  of  the
credit  cards  were  in  his name (due,  allegedly,  to  Rebeccas
troubled credit history) but Rebecca did not take over any of the
credit card debt Dennis himself accrued.
          By  Rebeccas calculations, Dennis received property and
assets  with a net value in excess of $1 million (even  excluding
the  retirement accounts estimated present value,  in  excess  of
$300,000), while Rebecca received property and assets with a  net
value of slightly over $100,000.
     B.   Rebeccas Rule 60(b) Motion
          At the conclusion of the divorce hearing on December 1,
2004,  Rebecca  sent Dennis an e-mail stating  that  she  thought
everything went well.  Dennis remarried in 2005, but did not tell
Rebecca.   In September 2005 Rebecca learned of Denniss  marriage
from  her  children.  Two of Rebeccas children visited Dennis  at
the  cabin  in Sterling in August and met his new wife.   Rebecca
claimed  that  Dennis made it clear that the  children  were  not
welcome at the cabin.  Dennis denied this claim, explaining  that
he only refused to vacate the cabin for her children during their
visit.
          In October 2005, about ten months after the divorce and
property  judgment, Rebecca filed a Rule 60(b) motion  to  vacate
the property division.  The motion cited three grounds for relief
under Rule 60(b): (1) mistake, (3) misconduct, and (6) injustice.
          Rebeccas motion did not contain any discussion  of  the
mistake claim.
          Rebeccas claim of extortion or misconduct was based  on
events  that occurred before the divorce and around the  time  of
the  property  allocation negotiations.  In August  2004  Rebecca
went  to California, ostensibly to help her son find an apartment
and to attend a real estate class.  After she returned to Alaska,
Dennis  accused her of having met someone in California.  Denying
it, Rebecca invited Dennis to look at her computer and read her e-
mails.   Dennis  accepted.  He purchased a  computer  program  to
allow him to access an e-mail account to which he did not have  a
password.  On or before September 14, 2004,7 Dennis accessed this
account  and  found  a  number of e-mails,  some  of  which  were
          sexually explicit, between Rebecca and Bill Miles.  Dennis
printed  these e-mails and confronted Rebecca, who  again  denied
having an affair.
          Rebecca and Dennis provided different accounts of  what
happened  next.  Both agreed that Dennis asked Rebecca  what  she
would  think if her children, friends, and co-workers knew  about
her  affair.   As  the  superior court explained,  Dennis  likely
intended  this  to  be  a  rhetorical  statement  while   Rebecca
interpreted it as a threat.8 Rebecca maintained that Dennis began
revealing  tidbits  of information to her children,  establishing
his  possession  of her e-mails as a credible  threat.9   Rebecca
claimed  that  this threat of exposure dominated  their  property
division negotiations.
          Though  the motion focused on the Rule 60(b)(3)  claim,
Rebecca  argued  that she was alternatively  entitled  to  relief
under  Rule 60(b)(6).  She offered as the basis of that  argument
that the property settlement was not well thought out and .  .  .
highly inequitable even on its face.
          Superior  Court  Judge  Sharon  L.  Gleason   held   an
evidentiary  hearing  on  December 1,  2006,  and  heard  closing
arguments  on December 7, 2006.  The court, in an oral  decision,
denied Rebeccas Rule 60(b) motion.  It later awarded Dennis Civil
Rule 82 attorneys fees and costs.  Rebecca appeals.
III. DISCUSSION
     A.   Standard of Review
          A party may seek relief from a final judgment by filing
a  timely  motion  under  Rule 60 of the Alaska  Rules  of  Civil
Procedure.   We  review the denial of a motion  for  relief  from
judgment for an abuse of discretion.10  We will find an abuse  of
discretion  when we are left with a definite and firm conviction,
after  reviewing the whole record, that the trial court erred  in
its ruling.11
          We  review  a  superior courts award of attorneys  fees
under Rule 82 for an abuse of discretion.12  Whether the superior
court applied the appropriate legal standard in its consideration
of  a  fee petition presents a question of law that we review  de
novo.13
     B.   Rebeccas Rule 60(b) Motion Was Timely.
          Dennis  briefly argues that Rebeccas claims under  Rule
60(b)(1)  and  (3)  are time barred.14  While Rebecca  filed  her
motion  within one year of the divorce judgment, Dennis  contends
that  the motion did not meet the independent requirement in Rule
60(b)  that  the  motion shall be made within a reasonable  time.
The  superior court did not make an express ruling on timeliness,
but  apparently  found the motion timely because it  reached  the
merits of Rebeccas claims.
          We  agree with the superior courts implicit finding  of
timeliness.   Initially,  it  appears  that  Dennis  waived  this
argument at the evidentiary hearing.  His lawyer explained,  Just
for   clarification,  in  terms  of  Mrs.  Powells  motion  under
60(b)(3).   It  would  appear that that is  that  the  motion  is
timely.
          Moreover,  the  case Dennis cites  in  support  of  his
argument, Sandoval v. Sandoval,15 is unavailing.  In Sandoval  we
          concluded that the superior court did not abuse its discretion by
finding  that  a  movants Rule 60(b) motion filed  eleven  months
after the judgment was untimely.16  Thus Sandoval was decided on a
different procedural posture than the present case and involved a
longer  delay than the present case.  It is telling  that  Dennis
does not claim that Rebeccas delay prejudiced his case.17
     C.   Rebecca Waived Her Claim to Relief Under Rule 60(b)(1).
          In  her  motion  to  vacate  the  property  settlement,
Rebecca  did not explicitly rely on Rule 60(b)(1) as a basis  for
relief.   During  closing  argument, the  superior  court  wanted
Rebeccas  attorney  to explain the specific subsections  of  Rule
60(b)  that  Rebecca  was invoking.  Her attorney  conceded  that
Rebeccas  claim of mistake was more properly viewed  as  a  claim
under   subsection  (b)(3)  because  Denniss  alleged  misconduct
directly  caused  the mistake.18  The superior court  accordingly
denied relief under Rule 60(b)(1) explaining that, [(b)](1), as I
clarified with Mr. Eschbacher [Rebeccas attorney], is not  really
applicable to the facts that were alleged in this case.
          On  appeal,  Rebecca argues that she never learned  the
value   of   Denniss  retirement  account  before  the   property
allocation  and,  thus, that her waiver  of  any  rights  to  the
account   constituted  a  mistake  justifying  relief  from   the
judgment.   She  also  argues  that  Denniss  alleged  misconduct
regarding her e-mails with Miles deterred her from seeking  legal
advice regarding the property division, which led to her mistake.
          Dennis  responds  that Rebecca, through  her  attorney,
disclaimed  Rule  60(b)(1) as a ground for  relief.   He  further
argues  that Rebecca knew that she was entitled to a  portion  of
the  retirement account but deliberately chose to waive any claim
to it.
          Given  that Rebeccas attorney specifically agreed  that
Rebeccas  claim  of mistake was properly viewed  as  a  claim  of
misconduct or coercion under Rule 60(b)(3), we conclude that  the
superior court did not err when it determined that Rebecca waived
any claim to relief under Rule 60(b)(1).
     D.    The  Superior Court Properly Denied Relief Under  Rule
60(b)(3).
          Rebecca  sought relief under Rule 60(b)(3),  contending
that  she  only  accepted  the property division  because  Dennis
threatened to disclose the e-mails documenting her affair to  her
family,  friends, and colleagues.  The superior court found  that
Rebecca  might have interpreted Denniss statement  to the  effect
of  what would people think if they knew about the affair   as  a
threat,  but  that Dennis meant it to be rhetorical.   The  court
found  quite persuasive Rebeccas August 30, 2004 e-mail to  Miles
in  which  she  stated her discovery that Alaska  is  a  no-fault
divorce  state,  meaning that her affair  would  not  affect  her
rights  to  the  marital property.  Examining the text  of  later
communications, the court explained that:
          really, the tone of communications in the end
          of October, when the negotiations took place,
          has no hint of any concern by Ms. Powell of a
          sense of over-reaching, of feeling in any way
          threatened, or that, she better not push  too
          hard, or, who knows what will happen.  Theres
          simply  an indication of two competent adults
          negotiating a property division, and  without
          any sense of one person holding anything over
          the other person . . . .
          
The  court  concluded that it did not find on  balance  that  Ms.
Powell  has established by clear and convincing evidence  .  .  .
that  any  misconduct of Mr. Powell . . . was a factor  with  the
parties   property  decision  agreement  that   they   reached.19
Moreover,  the superior court distinguished Rebeccas citation  to
persuasive authorities, finding that the cases she cited involved
coercion that was more extreme than Denniss alleged acts.
          On  appeal, Rebecca argues that Dennis threatened  that
he  would  reveal her e-mails with Miles to her family,  friends,
and  colleagues.   Rebecca contends that  Denniss  statement  was
coercive,  even if Dennis did not intend his statement  to  be  a
threat.  Rebecca argues that Dennis established a credible threat
by revealing information about the affair to her children.
          Rebecca   contends  that  Denniss   conduct   met   the
definition of extortion contained in Alaskas criminal code20  and
that  this justifies relief under Rule 60(b)(3). But her argument
assumes  that Dennis threatened that he would reveal Rebeccas  e-
mails  with  Miles  if  she did not accept  a  lopsided  property
division.  While  Dennis  conceded that he  made  one  rhetorical
statement  to Rebecca, he never admitted, and the superior  court
in  its findings never found, that Dennis tied his statement into
the  property negotiations.  Moreover, the superior  court  never
found that Dennis intended his statement to be a threat.
          Rebecca  attempts  to distinguish the  superior  courts
findings regarding the tenor of her e-mails with Miles and Dennis
by  comparing  the dates of her e-mails to the dates  of  Denniss
discovery of her e-mails and Denniss alleged threat.  Rebecca may
be  correct that the superior courts reliance on an August 30  e-
mail  in  support of its findings that Rebecca was not  concerned
about  Dennis  revealing her affair was misplaced.   But  Rebecca
ignores the superior courts findings that her e-mails during  the
October   negotiations   negotiations  occurring  after   Denniss
discovery  of  Rebeccas e-mails with Miles  still demonstrated  a
lack  of  fear or coercion.  For example, in an e-mail from  mid-
October,  Rebecca sent Dennis a proposal for a property  division
and  suggested,  Let me know what you think  or  come  back  with
something else.  I REALLY want to work this out without attorneys
it  would  give each of us, immediately, most of our $3500  back.
Moreover, the tenor of non-negotiation e-mails between Dennis and
Rebecca  from  October 2004 through 2005 reflected  no  signs  of
intimidation or coercion.
          After reviewing the record as a whole, we conclude that
the superior court did not abuse its discretion by denying relief
under Rule 60(b)(3).
     E.    The  Superior Court Properly Denied Relief Under  Rule
60(b)(6).
          Rebecca claims that the ratio of assets in the property
division is so disproportionately in favor of Dennis that  it  is
          facially unjust and must be vacated. Because there is a
presumption  that  an equal division is an equitable  division,21
Rebecca claims that there should be a presumption that an unequal
division is an inequitable division of assets.22
          Rebecca also argues that Denniss behavior regarding the
e-mails   documenting  her  affair  and  her  lack  of  knowledge
regarding  the value of Denniss retirement account  presented  an
extraordinary  circumstance justifying relief from the  judgment.
Dennis  responds  that  the factors that  this  court  ordinarily
considers in a Rule 60(b)(6) analysis do not justify reversal  of
the superior courts decision.
          1.    Most of Rebeccas claims are not cognizable  under
Rule 60(b)(6).
          Dennis  initially  argues that Rebeccas  Rule  60(b)(6)
motion is based largely on impermissible considerations.  We have
consistently  explained  that  [a] party  can  invoke  subsection
(b)(6)  only  if  none  of  the  other  five  clauses  apply  and
extraordinary  circumstances exist.23  Thus clause  (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.24  The superior court recognized the narrow scope of
Rule  60(b)(6)  in  its  decision when  it  explained  that  Rule
60(b)(6)  really  is not meant to apply when you  almost  make  a
(b)(3) showing . . . but not quite, and then you say, well,  then
you should apply (b)(6) for relief.
          Rebecca  argues  that she did not  know  the  estimated
present  value of Denniss retirement account.  But this assertion
amount[s]  to a claim of mistake or inadvertence under subsection
(1).25  Rebecca argues that Dennis misled her about the value  of
his retirement account.  But this assertion amounts to a claim of
misconduct  under subsection (3) or of newly discovered  evidence
under  subsection  (2).26   Rebecca  also  argues  that  she  was
pressured  and  threatened into accepting the property  division.
But  this  assertion  is  essentially a  claim  of  duress  under
subsection (3).27
          After  removing  impermissible considerations,  Rebecca
only  has  one argument remaining: the sizable disparity  in  the
ratio  of  assets  divided between Rebecca and Dennis.   However,
Rebecca  ties  this disparity to her claims of Denniss  coercion;
she  does  little  to  argue  that  the  disparity  independently
justifies relief.
          2.   The  superior  court did not abuse its  discretion
               when it denied Rule 60(b)(6) relief on the merits.
               
          We   have  highlighted  four  factors  that  should  be
considered in a Rule 60(b)(6) motion in the context of a property
division  in  a  final  divorce.   The  factors  are:   (1)   the
fundamental,  underlying assumption of the dissolution  agreement
had  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 [property in dispute]  was  the
parties  principal asset.28  Because these factors are rooted  in
equity,  relief  can  be granted even if  some  factors  are  not
applicable.29
          The  superior  court analyzed these  four  factors  and
determined  that the factors did not weigh in favor  of  vacating
the judgment.  Assuming that Rebeccas claims are cognizable under
Rule  60(b)(6), we conclude that the superior court did not abuse
its discretion by denying relief under this subsection.
          The  superior court found the first factor  considering
if  a  fundamental,  underlying  assumption  of  the  dissolution
agreement  has been destroyed  inapplicable. The court determined
that  the  alleged  oral understanding that  Dennis  would  allow
Rebeccas children free access to the Sterling property was not  a
fundamental, underlying assumption of the dissolution  agreement.
The  court reasoned that, if it was, then Rebecca, a real  estate
agent,  would  not  have  relied on  purely  oral  assertions  of
intentions.   Given  that Rebecca does not contest  the  superior
courts  resolution  of  this factor,  we  will  not  disturb  the
superior courts assessment.
          The superior court found the second factor  considering
if   the  parties  property  division  was  poorly  thought   out
inapplicable given the extent of the negotiations between Rebecca
and  Dennis  and  the  detailed paperwork  that  they  completed.
Rebecca   argues  that  the  disproportionate  ratio   of   asset
distribution,  combined with her general lack of knowledge  about
the  value of Denniss retirement account, demonstrates  that  the
property division was poorly thought out.  Rebecca further argues
that Denniss alleged misconduct involving the e-mails clouded her
examination  of  the  division.   Denniss  response  echoes   the
superior  courts  reasoning: there was  an  exchange  of  e-mails
between  the  parties and a detailed division of  assets  in  the
proposed property division.
          We  conclude that the superior court did not abuse  its
discretion  in  assessing the second factor.  The superior  court
reasonably  examined  the complete and  detailed  nature  of  the
property  division and concluded that Rebecca and Dennis  thought
about  the allocation.  The courts rejection of Rebeccas coercion
claim  under  Rule  60(b)(3)  undermines  her  attempt  to  raise
coercion  in  the context of Rule 60(b)(6).  Rebecca also  argues
that  she  lacked  knowledge of the size  of  Denniss  retirement
account.   But  Rebecca knew that she was  entitled  to  part  of
Denniss retirement account  and she knew at least the approximate
annual  value of his retirement payments because this figure  was
listed in the proposed property division.
          The   superior  court  found  that  the  third   factor
considering  if  the  property division was reached  without  the
benefit  of counsel  did not weigh in Rebeccas favor.  The  court
found that counsel were involved and that Rebecca had the benefit
of  counsel  in  connection with the divorce.  The  court  noted,
however, that counsel for Rebecca was not present at the  divorce
hearing.   Rebecca argues that she did not discuss  the  property
division  with  a  lawyer and explains that she  did  not  do  so
because  Dennis threatened her. Dennis responds that Rebecca  had
the benefit of counsel.
          Rebeccas  strongest argument is that any  legal  advice
she sought was of a temporary and minimal sort.  But the superior
court  seemed unimpressed with Rebeccas claim that  she  did  not
discuss  the property division with her attorney.  In  an  e-mail
between   Rebecca  and  Dennis,  Rebecca  encouraged  Dennis   to
negotiate  with  her without attorneys so that  they  both  could
receive  a  refund of their retainers.  Notably, this e-mail  was
sent  in mid-October, after Denniss alleged threat.  Rebecca thus
accepted  the  risks of not having a lawyer in exchange  for  the
benefit of not paying attorneys fees.  Rebecca also admitted that
she  called  her  attorney explaining  that  she  had  reached  a
property  division, but declined the attorneys request to  see  a
copy  of  the  document.   Rebeccas explanation  is  that  Dennis
coerced  her into not discussing the division with her  attorney.
Given  the  superior  courts  rejection  of  Rebeccas  claim   of
coercion, a ruling we have upheld, we conclude that the  superior
court  did  not abuse its discretion in finding that this  factor
did not favor Rebecca.
          The   superior  court  found  that  the  fourth  factor
considering if the property in dispute was the parties  principal
asset   favored Rebecca because Denniss retirement account was  a
principal asset acquired by the parties during the marriage.  But
the  court  concluded that this factor alone was insufficient  to
justify  relief based on Rule 60(b)(6).  Both Rebecca and  Dennis
agree  with  the  superior  courts  characterization  of  Denniss
retirement account.
          Examining  these  considerations as a whole,  only  one
factor favors granting Rebecca relief from the property division.
We  conclude that the superior court did not abuse its discretion
in denying Rebeccas Rule 60(b)(6) motion.
     F.    The  Superior  Court  Did Not  Err  in  Its  Award  of
Attorneys Fees.
          After  deciding in favor of Dennis, the superior  court
awarded  Dennis  $3,255  in attorneys fees  and  $572  of  costs.
Rebecca  argues  that the superior court erred by  relying  on  a
Civil Rule 82 prevailing party standard rather than the method of
awarding  fees  used  in divorce cases, which  is  based  on  the
parties relative economic situations and earning capacities.
          Dennis  responds  that the divorce exception  does  not
apply  to  Rule  60  motions and argues that the  superior  court
properly followed Rule 82.  Dennis also appears to argue that  he
should have received greater attorneys fees,30 but his brief does
not  argue  that the superior court made a mistake  or  that  any
mistake amounted to an abuse of discretion.31
          The  superior court applied the correct legal standard.
Rule  82  governs attorneys fee awards in a Rule 60(b) motion  to
modify a divorce decree.32  Because Rebecca does not assert  that
the  court abused its discretion within the framework of Rule 82,
we affirm the superior courts award of fees and costs.
IV.  CONCLUSION
          We AFFIRM the decision of the superior court.
_______________________________
     1     As  explained below, Rebecca alleges that Dennis  told
her not to discuss the division with her attorney.  She testified
that she told her attorney this reason when he asked her why  she
would  not  send  him  the draft agreement.   Dennis  denies  her
allegation.

     2    Prior to the second marriage, the parties signed a pre-
nuptial  agreement whereby Rebecca waived any claims  to  all  of
Denniss pre-marriage property, among other things.  However,  the
pre-nuptial   provided  that  the  two  would  re-negotiate   the
agreement  on  their  fifth  wedding anniversary.   No  such  re-
negotiation occurred.  The superior court did not discuss the pre-
nuptial agreement in its decision.

     3     It  is  not clear if the two truly split the mortgage.
By  agreeing  to  pay  off the mortgage  from  the  sale  of  the
Anchorage  house, it appears that Rebecca essentially  took  over
the  mortgage, subject to some other payment agreements set forth
by the parties later in the proposed property division.

     4     Dennis listed his gross wages on the property division
form  that  the two jointly submitted to the court.   Given  that
Dennis  was  retired  at the time, his gross wages  consisted  of
retirement payments.

     5    Dennis, for the purposes of Rebeccas Rule 60(b) motion,
did  not submit an alternate valuation of his retirement account.
However, the superior court suggested that it might allow  Dennis
the  opportunity  to  present his own  valuation  if  it  granted
Rebeccas motion.

     6    During the marriage Dennis cashed in his Thrift Savings
Plan (TSP) account.  While Rebecca occasionally makes mention  of
the  TSP money, she concedes that most of this money was invested
in the Sterling property, which Dennis received.

     7     The  print  date  of  the e-mails  in  the  record  is
September 14, 2004.  The most recent e-mail in the record between
Bill Miles and Rebecca was sent on September 13, 2004.  We assume
that  the  computers date was correct.  Based on  his  testimony,
Dennis  might  have  accessed these e-mails  at  any  time  after
Rebecca   invited  him  to  look  at  her  computer  in   August.
Therefore,  the  date  of  discovery is likely  sometime  between
Rebeccas return in August and September 13 or 14, 2004.

     8    The court explained:

          I think that whether one views the statements
          as rhetorical, as Mr. Powell testified, or as
          threatening, as Ms. Powell testified, perhaps
          the    how  it  was  heard  and  how  it  was
          conveyed, both parties were accurate in  that
          regard.  I simply dont know.  They heard  and
          conveyed  what they thought, and  interpreted
          it differently.
          
     9    Two of Rebeccas children testified that Dennis revealed
information regarding Rebeccas affair to them.

     10    Dewey v. Dewey, 969 P.2d 1154, 1157 (Alaska 1999).

     11     Hopper  v.  Hopper, 171 P.3d 124, 128  (Alaska  2007)
(quoting McGee v. McGee, 974 P.2d 983, 987 (Alaska 1999)).

     12    Lowe v. Lowe, 817 P.2d 453, 460 (Alaska 1991).

     13     See  McDonald  v. Trihub, 173 P.3d 416,  420  (Alaska
2007).

     14     Dennis  does not make this argument with  respect  to
Rebeccas Rule 60(b)(6) claim.

     15    915 P.2d 1222, 1223-24 (Alaska 1996).

     16    Id.

     17    See Alaska Placer Co. v. Lee, 502 P.2d 128, 131 (Alaska
1972)  (upholding as being made within a reasonable time  a  Rule
60(b)(1)  motion  filed  forty-nine days  after  discovery  of  a
mistake  and  noting that there was no indication of  prejudicial
delay).

     18    The exchange was:

          Court:         All right.  There is one other
                    topic I wanted.
          Eschbacher:    Yes, maam.
          Court:         60(b)(1), mistake, inadvertent
                    surprise   or  excusable   neglect.
                    Which  one are you  or, which  ones
                    are you alleging of those?
          Eschbacher:    Well, now, you mean under  are
                    you talking about 60(b)(1)?
          Court:          Correct.  I mean, as  I  read
                    your   brief,   you  are   alleging
                    alternative  bas[e]s (1),  (3)  and
                    (6).
          Eschbacher:    Thats correct.
          Court:          And, so, (b)[(1)] is mistake,
                    inadvertent  surprise or  excusable
                    neglect.  And my question is . . .
          Eschbacher:    It would be  it would probably
                    be  mistake, inad . . .   well,  it
                    would   sorta  follow   under   the
                    excusable neglect or the mistake.
          Court:         What was the mistake?
          Eschbacher:     Well, it wasnt a mistake.  It
                    would  be  the  excusable  neglect,
                    because she didnt  because she  was
                    laboring under the threat.
          Court:         So isnt that really a (b)(3)?
          Eschbacher:     It  would be a (b)(3).  Youre
                    right.
          Court:         I mean, I . . .
          Eschbacher:     It  would  it certainly  does
                    fit  more  neatly under (b)(3).   I
                    dont dispute that.
                    
     19    A party who asserts fraud, misrepresentation, or other
misconduct of an adverse party as a ground for relief under  Rule
60(b)(3)  must  prove  these assertions by clear  and  convincing
evidence.  Babinec v. Yabuki, 799 P.2d 1325, 1333 (Alaska 1990).

     20     AS  11.41.520(a)(3) (A person commits  the  crime  of
extortion  if  the  person obtains the  property  of  another  by
threatening or suggesting that either that person or another  may
. . . expose confidential information or a secret . . . .).

     21    See Lowdermilk v. Lowdermilk, 825 P.2d 874, 877 (Alaska
1992).

     22    While this argument might have some merit, we note that
it  is  not  the  contrapositive of the  recognized  presumption.
Accordingly,  it  is not an accurate statement  as  a  matter  of
logic.

     23     Juelfs  v.  Gough,  41 P.3d 593,  597  (Alaska  2002)
(quoting Lacher v. Lacher, 993 P.2d 413, 419 (Alaska 1999)).

     24    Vill. of Chefornak v. Hooper Bay Constr. Co., 758 P.2d
1266, 1270 (Alaska 1988) (quoting Farrell v. Dome Labs., 650 P.2d
380, 385 (Alaska 1982)).

     25    Lowe v. Lowe, 817 P.2d 453, 457 (Alaska 1991).

     26     See  id.;  OLink v. OLink, 632 P.2d 225, 230  (Alaska
1981).

     27     J.C.  v.  M.L.C., 668 P.2d 1351, 1352  (Alaska  1983)
(holding  that alleged threats that wife would report husband  to
the  IRS  for tax evasion if the husband did not agree  to  admit
paternity of child must be considered under Rule 60(b)(3)).   But
see  Lowe,  817 P.2d at 458 (considering threats in the framework
of Rule 60(b)(6)).

     28      Lacher,  993  P.2d  at  419  (quoting  Schofield  v.
Schofield, 777 P.2d 197, 202 (Alaska 1989)).

     29    See Clauson v. Clauson, 831 P.2d 1257, 1260-61 (Alaska
1992).  These factors are not strictly necessary conditions  but,
rather,  are  particular instantiations of the equitable  factors
required to justify relief under Rule 60(b)(6).  Id. at 1261.

     30    Denniss brief states, The trial court properly awarded
$3,255 in attorney fees and $522 in costs.  It later asserts, Mr.
Powell  is  entitled  to  thirty  percent  of  reasonable  actual
attorney fees necessarily incurred, which is $3,900.  He is  also
entitled  to  his  full  costs of  $572  for  a  total  award  of
$4,472.00.

     31     Moreover,  Dennis did not appeal the superior  courts
award.  He is only an appellee.  See Alaska R. App. P. 204(g).

     32     McGee  v.  McGee,  974 P.2d 983,  992  (Alaska  1999)
(quoting  Lowe,  817 at 460); see also L.L.M. v. P.M.,  754  P.2d
262, 263-64 (Alaska 1988).

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