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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of the Estate of Wayne Colyer Fields (09/04/2009) sp-6409

In the Matter of the Estate of Wayne Colyer Fields (09/04/2009) sp-6409

     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

In the Matter of the Estate of )Supreme Court Nos. S-12017/S-12318
) Consolidated
)
) Superior Court No. 4FA-91- 41 PR
WAYNE COLYER FIELDS, )
) O P I N I O N
)
) No. 6409 - September 4, 2009
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Mark I. Wood, Judge.

          Appearances:  Robert A. Sparks, Law Office of
          Robert  A.  Sparks, Fairbanks, for Appellants
          Wayne  Fields and Joseph Fields.  David York,
          Law  Office  of  David York,  Fairbanks,  for
          Appellant  Elizabeth Cook.  Cory R. Borgeson,
          Borgeson & Burns, PC, Fairbanks, for Appellee
          Charles   Lee   McKelvey   Fields,   Personal
          Representative of the Estate of Wayne  Colyer
          Fields.

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

          WINFREE, Justice.

I.   INTRODUCTION
          Wayne Colyer Fields, an Alaska resident, conveyed  real
property in Washington to his four adult children.  After Fieldss
death his children engaged in probate litigation over the removal
of  one of them as personal representative and the intent of  the
Washington  property conveyance.  Following post-trial  findings,
conclusions,  and  recommendations by the  standing  master,  the
superior court denied removal of the personal representative  and
imposed  a constructive trust over the property, ordering Fieldss
children  to convey their interests in the property  to  a  trust
referenced in Fieldss will.  Three of Fieldss children appeal  on
numerous grounds.  We affirm the decision denying removal of  the
personal  representative  and,  with  one  caveat,  the  decision
imposing the constructive trust over the Washington property   we
remand  for further proceedings to confirm whether two of Fieldss
children  received  due process-compliant post-trial  notice  and
opportunity  to  be heard before the superior court  entered  its
final order on that issue.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          In  the  1930s Fields and his wife, Edna Mae, purchased
six acres of scenic waterfront property in Washington, where they
lived  for  a  few  years.  Fields and his  wife  then  kept  the
Washington property for family recreational purposes.  Fields had
four  children:   Elizabeth,  Joseph,  Wayne  Jr.,  and  Charles.
Following their mothers death, the children became concerned that
their  father  might convey the Washington property  outside  the
family  and  they convinced him to convey the property  to  them.
Fields  transferred the Washington property to his four  children
in   1987.    Whether  Fields  intended  the   transfer   to   be
unconditional or in trust for his descendants is at the heart  of
this case.
          Fields  died in 1990 at the age of 82.  He left a  will
executed  on June 12, 1980, the validity of which has never  been
challenged.   Specific bequests were made to  each  of  the  four
children,   the  Fairbanks  North  Star  Borough   Library,   and
Elizabeths  husband.  The residuary estate,  including  real  and
personal property, was left to The Wayne Colyer Fields Trust, but
apparently no trust document had ever been executed.
     
     Charles  was  named as executor in the will.  Charles  filed
for  informal  probate  of the will and appointment  as  personal
representative  in  January  1991.  The matter  was  referred  to
Standing  Master  Susan Paterson the same  day,  and  she  signed
orders  for  the  informal  probate  of  the  will  and  Charless
appointment as personal representative of Fieldss estate.
          Standing  Master Paterson retired and was  replaced  by
Standing Master Alicemary L. Closuit, who gave notice to  Charles
in May 1996 that absent an objection the estate proceedings would
be  administratively  closed due to inactivity.   Superior  Court
Judge  Ralph  R. Beistline administratively closed  the  file  in
October    1997   without   discharging   Charles   as   personal
representative.
          The  siblings  continued to discuss, and  dispute,  the
status  of  the  Washington property.  In 1999 Charles  concluded
that  he  should create a trust document for the trust referenced
in  Fieldss will.  In 2002 Charles sent a letter to his  siblings
asking  them  to  execute  quitclaim  deeds  to  transfer   their
interests  in  the Washington property to the estate  so  that  a
trust could be established, the property could be conveyed to it,
and the estate could be closed.  Elizabeth, Joseph, and Wayne Jr.
questioned  the  need  for a conveyance and  refused  to  execute
deeds.
     B.   Procedural History
          In  December 2003 attorney Barry Donnellan  entered  an
appearance on Elizabeths behalf and filed a motion to re-open the
estate  proceedings.  Donnellan also filed two  other  documents,
each  entitled Joinder in Motion to Re-Open the Case, one  signed
by  Joseph  and  the  other by Wayne Jr. (each  of  which  listed
personal addresses and telephone numbers).  The joinders were  on
Donnellans pleading paper and stated:  I am a son of Wayne Colyer
Fields,  deceased.  I join in the motion by my  sister  Elizabeth
Jane Cook to re-open this case.
     
     At  the  same time Donnellan filed a petition on  Elizabeths
behalf  to remove Charles as personal representative pursuant  to
AS   13.16.295(a),1  alleging  that  Charles  had  neglected   to
distribute  the estates interest in real property  in  Fairbanks,
refused  to  provide  information about the  estate,  and  denied
Elizabeth  access  to her fathers memorabilia  at  the  Fairbanks
residence.   Donnellan certified service on Charles, Joseph,  and
Wayne  Jr., including notice of a hearing on the removal petition
set for February 20, 2004.
          Charles stipulated to the motion to re-open the  estate
and  it  was granted in January 2004.  The stipulation was signed
by  Donnellan  and  by  Charless attorney,  Cory  Borgeson,  with
certified  service on Joseph and Wayne Jr.  The order  re-opening
the  estate,  signed by Standing Master Closuit, was  distributed
only  to  Donnellan and Borgeson.2  In light of Judge  Beistlines
resignation,  the proceedings were re-assigned to Superior  Court
Judge  Mark  I.  Wood; notice to that effect was  distributed  to
Donnellan and Borgeson.
          Charles opposed removal as personal representative  and
asked  for  leave  to conduct discovery and  for  a  trial  date.
Charles described his three siblings as the three petitioners and
blamed the delays in estate administration on their unwillingness
to  cooperate  in  establishing a trust  for  the  conveyance  of
Fieldss residuary estate.  Charles also alleged that when  Fields
deeded  the Washington property to his children, they  agreed  to
hold  it in trust and act as co-trustees in managing it,  and  he
asked the court to establish an implied trust if no express trust
was  found  to  exist.  Charles served his filing on  Joseph  and
Wayne Jr.
          Standing  Master  Closuit held the  previously  noticed
hearing  on  February  20, 2004.  Despite having  notice  of  the
hearing, Joseph and Wayne Jr. did not attend.  In response  to  a
question about what the siblings wanted, Donnellan answered  that
all  remaining  assets  should be distributed.   Standing  Master
Closuit set a June 10 trial for the petition to remove Charles as
personal representative, noting that [t]hree heirs want immediate
distribution  and stating that if Charles filed a  cross-petition
on the trust issue, everything would be tried at the same time.
          Charles   later   filed  a  formal  cross-petition   to
establish  an express trust to receive the balance of the  estate
after  satisfaction  of Fieldss specific  bequests.   The  cross-
petition asked the court to recognize the existence of the Fields
          Family Trust, order the appropriate parties to transfer the
Washington  and  Fairbanks real property to the trust,  and  name
Charles as trustee of the trust.  Charles served Joseph and Wayne
Jr. with the cross-petition papers.
          Charles  filed a witness list naming Elizabeth, Joseph,
and  Wayne Jr.  Donnellan, on behalf of Elizabeth, moved to  stay
the  cross-petition.   Charles filed  an  amended  witness  list.
Charles  subpoenaed Elizabeth for a deposition and she  moved  to
have  it quashed.  Charles opposed Elizabeths motion to stay  the
cross-petition.  Joseph and Wayne Jr. were served papers relevant
to these actions.
          In May 2004 Judge Wood denied Elizabeths motion to stay
the  cross-petition and directed that the cross-petition be heard
with  the  removal  petition, and also issued an  order  granting
leave  for  Charles to depose the other parties in  this  matter.
The orders, both of which had been recommended by Standing Master
Closuit, were distributed to Donnellan and Borgeson.
          At a June 4, 2004, status conference with Donnellan and
Borgeson present, Standing Master Closuit reset trial for October
13  and  14.  A written order confirming the new trial dates  was
issued  the  same day and distributed to Donnellan and  Borgeson.
Additional motions were filed regarding out-of-state depositions,
all  of  which were served on Joseph and Wayne Jr.  The resulting
orders  were distributed to Donnellan and Borgeson.   It  appears
from  the  record that Charless attorney deposed at least  Joseph
shortly before trial.
          Trial  took  place as scheduled before Standing  Master
Closuit.    Charles  and  Elizabeth  were  present   with   their
attorneys, Borgeson and Donnellan.  Joseph attended but chose  to
sit  in the spectator benches.  Elizabeth had the opportunity  to
put  her  case on first, but Donnellan stated Elizabeth was  just
going  to rely on the file for her petition to remove Charles  as
personal  representative.  Borgeson then presented Charless  case
both in opposition to the removal petition and in support of  the
cross-petition regarding the Washington property and the unformed
residuary  trust, calling two witnesses and introducing  fourteen
exhibits  into  evidence.   No  rebuttal  witness  testimony   or
documentary  evidence  was presented by  Donnellan,  and  counsel
moved directly to closing arguments.  Aside from Donnellans cross-
examination of Charless witnesses, the only evidence presented at
trial   regarding  the  Washington  property  and  the   unformed
residuary  trust  was that presented by Charles.   Elizabeth  and
Charles filed post-trial briefing and served Joseph and Wayne Jr.
          In   December  2004  Standing  Master  Closuit   issued
findings  of fact and conclusions of law and her recommendations.
She found that the family had not prevailed by a preponderance of
the  evidence  on the issue of removing Charles as  the  personal
representative  and  recommended  that  the  petition  to  remove
Charles be denied.  She also found that when Fields conveyed  the
Washington  property to his children, they  agreed  to  hold  the
property  in  trust for the benefit of all of his and  Edna  Maes
descendants:
          It is clear from the credible evidence . .  .
          that  the  family  was very  aware  of  their
          agreement to place the property in trust  for
          the  descendants of the decedent. The family,
          despite  this promise, never created a  trust
          document.  Their position now is that  it  is
          not  held  in  trust but  is  owned  by  them
          outright.
          
She  concluded  that the siblings would be unjustly  enriched  if
allowed  to  retain  or  sell  the Washington  property  with  no
restrictions, and recommended that the superior court  order  the
family to deed the Washington property into Fieldss estate.   She
further   found  that  Fieldss  will  referenced  a   trust   for
distribution  of the residue of his estate, that  the  trust  had
never  been  finalized,  and  that  as  personal  representative,
Charles  had a duty to create by document a trust and to transfer
property into that trust.
          The  final  page  of the standing masters  report  gave
notice that, pursuant to Alaska Civil Rule 53, objections to  the
findings and recommendations must be filed within ten days.  This
notice included detailed instructions on objection procedures.  A
copy  of the standing masters report was distributed to Donnellan
and Borgeson, but not to Joseph or Wayne Jr.
          No  objections were raised to Standing Master  Closuits
December  2004  findings and conclusions or her  recommendations.
In April 2005 Judge Wood denied the petition to remove Charles as
the personal representative.  In June 2005 Judge Wood entered  an
order  finding jurisdiction and adopting Standing Master Closuits
recommendations  regarding the Washington property.   Judge  Wood
then  imposed  a constructive trust to maintain the  [Washington]
property  for  the  benefit  of decedents  descendants,  directed
Charles  to  establish  an  express trust,  and  ordered  Fieldss
children to convey their interests in the Washington property  to
that trust.

          Judge Wood found that Elizabeth, Joseph, and Wayne  Jr.
submitted  to the Courts jurisdiction when [Elizabeth] filed  the
petition to remove the personal representative in this matter and
thus  it  has  personal jurisdiction over  the  parties.   As  to
subject matter jurisdiction, the court stated:
          Where a court has personal jurisdiction  over
          a  party,  it may indirectly affect title  to
          property located in another state through its
          power  over the individuals under the  courts
          jurisdiction  by  requiring  the   party   to
          execute  a  conveyance of land.  Additionally
          this  Court  has subject matter  jurisdiction
          over the estate pursuant to AS 13.06.065  and
          AS  13.16.025. . . . Thus, because the  Court
          has  personal jurisdiction over  the  parties
          and  subject  matter  jurisdiction  over  the
          estate  and  because  this  is  an  equitable
          action, the Court has jurisdiction to  follow
          the    Standing    Masters   recommendations.
          (Internal quotations and citations omitted.)
          
          In  September  2005 attorney Robert Sparks  entered  an
appearance in the proceedings for Joseph and Wayne Jr., and  they
moved  to set aside the two decisions (collectively the judgment)
pursuant  to Rule 60(b)(1), (3), and (4).3  As to Rule  60(b)(4),
they argued that the judgment was void for lack of subject matter
jurisdiction, lack of personal jurisdiction over Wayne  Jr.,  and
various  violations of due process.  Charles opposed the  motion,
submitting a number of e-mails among Elizabeth, Joseph, and Wayne
Jr.  demonstrating their collective efforts to remove Charles  as
personal  representative  and  to  contest  Charless  efforts  to
require them to convey their interests in the Washington property
to  the estate.  Judge Wood denied the motion for relief from the
judgment.   Joseph  and Wayne Jr. then moved for reconsideration.
Judge  Wood did not rule on this motion, and it was deemed denied
under Civil Rule 77(k)(4).
          Joseph  and  Wayne Jr. appeal the denial of their  Rule
60(b)  motion  only  as  it relates to the  Washington  property.
Elizabeth separately appeals the denial of the petition to remove
Charles as the personal representative and the decision to  adopt
the   standing  masters  recommendations  about  the   Washington
property.   Joseph  and  Wayne  Jr.  are  also  participating  in
Elizabeths appeal.  We consolidated the appeals.
III. STANDARD OF REVIEW
          We  review the denial of a motion to remove a  personal
representative  under AS 13.16.295 for abuse of discretion,4  and
will  overturn the superior courts findings of fact if  they  are
clearly  erroneous.5  We review the grant of an equitable remedy,
such  as  a constructive trust, for abuse of discretion,  but  we
review   de  novo  any  underlying  questions  of  law  and   the
application  of  law to facts.6  We generally review  a  superior
courts  decision  to deny relief under Rule 60(b)  for  abuse  of
discretion,  reversing only if we are left with  a  definite  and
firm conviction based on the whole record that the superior court
made a mistake.7  But we review de novo a decision to deny relief
under  Rule  60(b)(4) because the validity of  a  judgment  is  a
question of law.8  We may affirm the superior court on any  basis
supported by the record, even if that basis was not considered by
the court below or advanced by any party.9
          We  review  questions  regarding personal  and  subject
matter  jurisdiction de novo because [j]urisdictional issues  are
questions  of law subject to this courts independent  judgment.10
Questions of due process also are reviewed de novo.11   We  adopt
the  rule  of law that is most persuasive in light of  precedent,
reason,  and  policy   when considering  jurisdictional  and  due
process questions.12
IV.  DISCUSSION
     A.   Joseph and Wayne Jr.s Appeal
          1.   Additional facts and background relevant to Joseph
               and Wayne Jr.s Rule 60(b) motion
               
          Joseph and Wayne Jr. submitted affidavits in support of
their   Rule   60(b)  motion  stating  that:   they  never   were
represented  by Donnellan; they did not understand  why  Charless
attorney  sent  them  copies  of  papers  filed  in  the  probate
          proceedings but assumed it was just a courtesy; Donnellan did not
send them copies of documents;13 they did not understand that the
court system considered them parties to the proceedings; and they
were  not aware that Mr. Donnellan did not intend to present  any
witnesses  or  evidence  at  the  hearing.   They  also  disputed
Charless contention that their father had conveyed the Washington
property in trust.
          Charles opposed the motion, submitting a series  of  e-
mails  among  Elizabeth, Joseph, and Wayne Jr.,  obtained  during
discovery,  to  demonstrate Josephs and  Wayne  Jr.s  significant
participation  in  the  development  and  implementation  of  the
strategy for the probate court proceedings:
     a.   On  November  21, 2003, Elizabeth e-mailed regarding  a
          meeting  she  intended to schedule with  Donnellan  and
          Joseph  to  discuss the case.  Elizabeth  stated:   Mr.
          Donnellan  will be back in the country, next Wednesday,
          and  I will set up an appointment with him, for you and
          me.   I  have several questions to be put to him, which
          Ill send to you in the next couple of days (as well  as
          to  Wayne).  They parallel your thoughts for  the  most
          part.
     b.   On  December  9,  2003, Elizabeth  e-mailed  about  the
          meeting   she  and  Joseph  had  had  with   Donnellan.
          Elizabeth  noted that we had an hours meeting  with  Mr
          Donnellan,  and determined to go ahead with a  petition
          to  the  Probate  Court  to remove  [Charles]  as  Dads
          Personal  Representative and that a resolution  of  the
          Washington property dispute should wait.
     c.   On  February 1, 2004, shortly before Charles filed  his
          response to the removal petition, Elizabeth e-mailed in
          reply  to  an  e-mail from Wayne Jr.,  noting  Charless
          desire  to  transfer the Washington property  into  the
          estate.
     d.   On  February 13, 2004, Elizabeth e-mailed a request for
          documentation of instances in which Charles refused  to
          allow any one of us to help with administration of  the
          estate.   The  subject line of Elizabeths e-mail  reads
          Court hearing preparations.
     e.   On February 14, 2004, Wayne Jr. responded to Elizabeth,
          noting that his encounters with Charles were limited to
          exchanges about the Washington property.
     f.   On  March 31, 2004, Joseph e-mailed about evidence that
          could  be used in court and asked:  Are we going to  do
          something   besides  seek  his  removal   as   Personal
          Representative?
     g.   In  an  apparent e-mail attachment dated April 8, 2004,
          two   days   after  Charles  filed  his  cross-petition
          regarding  the Washington property, Joseph  provided  a
          lengthy and detailed response to the statements made by
          Charles in his cross-petition and related affidavit and
          to  Charless request that Elizabeth, Joseph, and  Wayne
          Jr.  be  required  to  convey their  interests  in  the
          Washington property to the estate.
     h.   On  April 17, 2004, Wayne Jr. e-mailed:  [I]f  we  lose
     (which   from  a  rational  viewpoint  seems  unlikely)   we
          will  be no worse off than we are now, still stuck with
          [Charles].   He asked if a partition of the  Washington
          property  could  be done at the same time  and  further
          questioned:  Does Donnellan say that we cant do both?
     i.   Elizabeths April 18, 2004, responsive e-mail repeatedly
          referred  to the petition to remove Charles as personal
          representative   as  our  petition  and   our   present
          petition.   She  notes  that  Donnellan  says  we   can
          withdraw now, or wait until after trial.  Its up to us.
     j.   On  April  19,  2004,  Wayne Jr.s wife  Kathy  e-mailed
          stating:   I  did want to let you know that [Wayne]  is
          having  second thoughts about not dropping  the  action
          against [Charles].  He feels the important thing is  to
          get  rid  of  [Charles] and now thinks  that  its  very
          likely that wont ever occur, given Donnellans statement
          about   the  likelihood  of  an  appeal.   Kathy  noted
          Elizabeths suggestion that their emphasis should be  on
          the  Washington  property, and asked Elizabeth:   After
          you  talk  to  Donnellan perhaps  we  could  arrange  a
          conference call between you, Wayne and Joe.   We  think
          this  requires real conversation.  On April  20,  2004,
          Kathy  e-mailed Elizabeth again and asked, There was  a
          reason  why you [Elizabeth] were given/allowed to  take
          the ball and told to run, right?
     k.   On   April   20,  2004,  Joseph  e-mailed,   discussing
          Elizabeths  motion  to stay Charless cross-petition  to
          establish a trust and transfer property to it.
     l.   Also  on  April 20, 2004, Wayne Jr. e-mailed,  stating:
          It seems we have a concurrence that at least for now we
          go  on  playing  this hand.  If we  win  and  [Charles]
          appeals (raises) then maybe we fold?  If Donnellan cant
          be around for the trial, then what?
     m.   Elizabeth sent an e-mail on April 20, 2004, summarizing
          discussions  she had with a Washington  attorney  about
          the Washington property and related issues.
     n.   On  April 21, 2004, Elizabeth e-mailed a status report.
          She  noted  the pending motion to stay Charless  cross-
          petition  and  stated that because  Charles  failed  to
          respond  to  the  removal  petition  and  the  list  of
          witnesses  named for trial related to trust issues,  we
          are not going to offer any [witnesses] of our own.
     o.   On  June  4,  2004, Donnellan e-mailed Elizabeth:   The
          court  set the trial off from next week to October  13-
          14.   Please  advice  [sic] Joe and Wayne  accordingly.
          Elizabeth replied, copying Joseph and Wayne Jr.
          
          In their reply Joseph and Wayne Jr. clarified that they
were  not unaware of the pendency or nature of the dispute  about
the  Washington property, but rather were unaware they  could  be
bound  by the trial result.  They noted, and reiterated  at  oral
argument  on the motion, that Donnellan (on behalf of  Elizabeth)
had  basically  defaulted on the Washington  property  issues  by
failing  to  present evidence or object to the masters  findings.
They thus argued that they were not attempting to re-litigate the
dispute, because it really had not been litigated at all.
          Judge  Wood  denied Joseph and Wayne  Jr.s  Rule  60(b)
motion, stating that they had adequate notice of the proceedings,
that  no  misrepresentations by Charless attorney prevented  them
from presenting a case, and that their failure to participate  in
the  proceedings  was  not  the result of  excusable  neglect  or
violations of due process.
          2.   Rule 60(b)(4)
          Joseph  and  Wayne Jr. raise a number of arguments  why
the  judgment was void and should have been set aside under  Rule
60(b)(4).  They argue that the probate court:  (1) lacked subject
matter  jurisdiction to consider and impose a constructive  trust
over  the  Fields childrens interests in the Washington property,
both inherently and because of the lack of a proper reference  of
the   matter   to  the  standing  master;  (2)  lacked   personal
jurisdiction  over Wayne Jr.; and (3) violated both  Josephs  and
Wayne  Jr.s due process rights by binding them to orders  without
their knowledge that they were subject to the courts jurisdiction
or were considered parties to the proceedings.

               a.   The   superior   court  had  subject   matter
                    jurisdiction   to  consider  and   impose   a
                    constructive trust over the Fields  childrens
                    interests in the Washington property.
                    
          The primary thrust of Joseph and Wayne Jr.s argument is
that   the  probate  court  is  a  court  of  extremely   limited
jurisdiction  and  has  no  authority to:   (1)  determine  title
disputes between a personal representative and strangers  to  the
estate;  (2)  entertain  equitable  actions  or  issue  equitable
relief;  or  (3)  consider  or impose a constructive  trust  over
property.   They  contend  that  these  matters  are  within  the
exclusive  jurisdiction of the Superior Court, [not] the  Probate
Court,  and  imply that Standing Master Closuit  is  the  Probate
Court  and  that Judge Wood is the Superior Court.  They  concede
that the Superior Court would have subject matter jurisdiction of
a  claim  to  impose a constructive . . . trust  but  state  that
Charles did not file his Cross-Petition with the Superior Court.
          The  fundamental flaw in Joseph and Wayne Jr.s argument
is   the  misconception  that  the  probate  court  is  something
different from the superior court.  Alaskas probate statutes  are
based  on  the Uniform Probate Code, which is designed  to  allow
states to create separate and inferior probate courts or to place
probate  jurisdiction  within a court of general  jurisdiction.14
Alaska   chose   the  latter  course,  placing   subject   matter
jurisdiction for probate matters with the superior court.15   The
probate   rule   authorizing  masters   to   make   reports   and
recommendations for final action by a superior court  judge  does
not  create  an  inferior probate court  over  which  the  master
presides.16
          It  is true that probate matters are governed generally
by probate statutes and rules, but a probate statute specifically
provides  that  the  court,  meaning the  superior  court,17  has
          jurisdiction over all subject matter relating to decedents
estates  and  trusts  [t]o  the  full  extent  permitted  by  the
constitution.18   We have previously noted that  when  exercising
probate jurisdiction a superior court should continue to exercise
its  jurisdiction to resolve questions ancillary to  the  probate
proceedings.19  Nothing in the probate statutes or rules suggests
that  a  superior  court exercising probate  jurisdiction  is  an
inferior  court  without  authority  to  decide  questions  of  a
decedents interest in property or to issue equitable relief.
          Briggs v. Estate of Briggs20 is instructive.  There, the
decedents  wife  brought  a superior court  suit  (separate  from
probate proceedings) for legal and equitable relief against:  the
decedents  estate;  a corporation owned in  equal  parts  by  the
decedent  and  another shareholder; and the other shareholder  in
that  corporation.21   She sought:  (1) delivery  of  twenty-five
percent  of the corporations stock pursuant to an oral  agreement
with the decedent for services rendered to the corporation; (2) a
declaration  that  a buy-sell agreement between the  shareholders
and  the  corporation was void; (3) reformation of  the  buy-sell
agreement;  or  (4)  payment  of  half  the  money  paid  by  the
corporation to the decedents estate for his stock under the  buy-
sell  agreement.22  She also sought damages from the  corporation
and  the surviving shareholder for conspiracy to deprive  her  of
her  interest  in  the corporation.23 The trial court  granted  a
motion  to  dismiss  all of the claims.24  On appeal  this  court
affirmed  the  dismissal  of the non-conspiracy  claims,  stating
that:   (1) those claims came within the superior courts  probate
jurisdiction; (2) the resolution of those claims was  intertwined
with  the probate of the decedents estate; (3) the relief  sought
was  available in the probate proceedings; and (4) the  wife  was
required to pursue those claims in the probate proceedings (where
she  already had filed an objection to the sale of the  decedents
stock to the corporation under the buy-sell agreement and a claim
to half of the proceeds of the stock sale).25
          Like  the  dispute in Briggs, the dispute over  Fieldss
Washington  property is directly related to and intertwined  with
the    administration   of   Fieldss   estate.    The    personal
representative  contended that the 1987 inter vivos  transfer  of
the Washington property by Fields had been based on an oral trust
agreement, that Elizabeth, Joseph, and Wayne Jr. were  in  breach
of the oral trust agreement and unjustly enriched by that breach,
and  that  a  constructive  trust  should  be  imposed  over  the
Washington  property so it could be administered as  property  of
the estate and distributed as a part of the residuary bequest  to
the  trust named in Fieldss will.  This is a sufficient nexus  to
the  decedents estate for the dispute to fall within the superior
courts probate jurisdiction.
          Joseph  and  Wayne  Jr. nonetheless  argue  that  other
probate  statutes specifically exclude constructive  trusts  from
the superior courts probate jurisdiction.  They first point to AS
13.06.065(3)  and  its grant of subject matter jurisdiction  over
trusts, and then to the definition of trust in AS 13.06.050(53),26
which includes express trusts and trusts created or determined by
judgment  or  decree under which the trust is to be  administered
          like an express trust, but explicitly excludes constructive
trusts.   Joseph and Wayne Jr. conclude that the only  reasonable
interpretation of these statutory provisions is that the  probate
court has no subject matter jurisdiction to impose a constructive
trust.  We disagree.

          The  reasonable  and sensible interpretation  of  these
statutory provisions is that a constructive trust (other  than  a
constructive  trust  that  might  ultimately  be  formalized   by
judgment  to  be  administered like  an  express  trust)  is  not
governed   by   and  administered  under  the  probate   statutes
concerning  trusts,  Title 13, Chapter 36, Trust  Administration.
But  this does not mean that the probate court is precluded  from
imposing a constructive trust as an equitable remedy in a probate
proceeding  when  appropriate.  In Riddell v. Edwards,27  a  case
arising from probate proceedings, we held that:
          a  constructive  trust may be  defined  as  a
          [device] used by chancery to compel  one  who
          unfairly holds a property interest to  convey
          that  interest to another to whom  it  justly
          belongs;  the  trust arises  to  prevent  the
          property   holder  from  retaining   property
          obtained by reason of unjust, unconscionable,
          or unlawful means.[28]
          
The  purpose and application of a constructive trust has  nothing
to  do  with the governance or administration of express  trusts,
and  there  is  no  impediment  to a  probate  court  imposing  a
constructive   trust  over  property  in  connection   with   the
administration  of  a decedents estate.  Indeed,  in  Riddell  we
vacated an order imposing a constructive trust over property  not
because the probate court lacked authority to order that form  of
equitable  relief, but because the necessary elements  justifying
relief were not apparent.29
          Joseph  and  Wayne Jr.s final argument for voiding  the
judgment  for lack of subject matter jurisdiction is  that  there
was  an  improper reference of the proceedings to Standing Master
Closuit.   They argue that Alaska Probate Rule 2(a)-(b),30  which
allows  the appointment of a standing probate master for  certain
matters,  does not list [e]quitable actions seeking to  impose  a
constructive trust on real property not owned by the estate as  a
matter that can be heard by the master.  They also point out that
the rule requires orders of reference to be served on all parties
and  that  there  is no evidence that an order of  reference  was
served  for  Charless cross-petition.  Lastly  they  assert  that
Standing  Master Closuit was never formally assigned  to  preside
over  Charless  cross-petition and she had no  power  or  subject
matter jurisdiction to hear the proceedings and make Findings  of
Fact and Conclusions of Law.
          The  standing  probate  master  conducts  hearings  and
recommends findings and conclusions to the superior court.31   It
is  the  superior court that makes final decisions,32 and  before
doing  so  the  court  may  permit oral  argument  or  additional
briefing,  may allow the taking of additional evidence,  and  may
          grant a trial de novo.33  Here Joseph and Wayne Jr. waived any
right to challenge Standing Master Closuits participation in  the
proceedings by failing to appear at the properly noticed February
20,  2004, hearing and raise a timely objection.  Standing Master
Closuits  participation  in  the proceedings  did  not  adversely
impact  the  superior  courts subject  matter  jurisdiction  over
Charless cross-petition regarding the Washington property.
               b.   The  superior court had personal jurisdiction
                    over Wayne Jr.
                    
          Wayne  Jr.  contends that the superior courts assertion
of personal jurisdiction over him violated his due process rights
and that the judgment is void and should have been set aside.  He
argues  that he did not have the requisite minimum contacts  with
Alaska because he has not visited the state since 1986 and has no
property in Alaska except for his interest in his fathers estate.
          We   have   interpreted   Alaskas   long-arm   personal
jurisdiction  statute to encompass  any case . . . in  which  the
exercise  of  jurisdiction is permissible  under  the  Fourteenth
Amendment.  34  As the United States Supreme Court  explained  in
International Shoe Co. v. Washington, due process requires that a
defendant  have minimum contacts with the forum state  such  that
maintaining a suit in the forum state does not offend traditional
notions  of  fair  play  and  substantial  justice.  35   When  a
controversy is related to or arises out of a defendants  contacts
with  the forum state, the exercise of jurisdiction is considered
specific  and justified by the relationship among the  defendant,
the  forum, and the litigation.36  We have further stressed  that
emphasis should be placed on the quality rather than the quantity
of the contacts. 37
          Wayne  Jr.s  interest as an heir to his fathers  estate
provides   sufficient  contact  for  the  exercise  of   personal
jurisdiction  specific to matters relating to or arising  out  of
the  administration  of  the  estate.   Wayne  Jr.s  joinder   in
Elizabeths 2003 motion to re-open the estate proceedings provides
additional  contact,  and  also provides  a  basis  for  personal
jurisdiction  under  the  theory of  consent.38   Alaska  Statute
09.05.010  provides  that  [t]he  voluntary  appearance  of   the
defendant  is  equivalent to personal service of a  copy  of  the
summons  and  complaint upon the defendant.  We have  interpreted
this   provision  to  mean  that  [a]  court  acquires   personal
jurisdiction   over   one   who   appears   without   challenging
jurisdiction.39   By  voluntarily appearing and  asking  for  the
estate  proceedings  to  be re-opened, Wayne  Jr.  perfected  the
superior  courts personal jurisdiction over him with  respect  to
all   matters   relating  to  or  arising  out  of  the   probate
proceedings.
               c.   With one possible exception, Joseph and Wayne
                    Jr. were not denied due process.
                    
          Joseph  and  Wayne  Jr. argue that the  superior  court
violated  their due process rights and thus that the judgment  is
void  and should have been set aside.  They contend that  because
they  were  never formally served with a summons and  a  copy  of
          Charless cross-petition under Civil Rule 4, they were not aware
that they had an obligation or right to respond to Charless cross-
petition  or that the cross-petition could affect their interests
in  the  Washington property.  They further argue that the cross-
petitions  failure to describe them as parties and  the  superior
courts  failure  to mail copies of its orders  directly  to  them
contributed  to  their perception that the litigation  would  not
affect  their  interests  in  the  Washington  property.   Citing
Aguchak  v. Montgomery Ward Co.,40 they note that this court  has
previously reversed a superior court judgment based on  a  denial
of due process in connection with a defective summons.
          We  reject  Joseph and Wayne Jr.s arguments  for  three
reasons.   First,  we have already held that by  voluntarily  and
generally  appearing in the probate proceedings  by  way  of  his
joinder  in  Elizabeths motion to re-open the estate proceedings,
Wayne  Jr. submitted to the superior courts personal jurisdiction
for   all  matters  relating  to  or  arising  from  the  probate
proceedings without the need for formal service of process  under
Civil  Rule 4.  The same holds true for Joseph.  Second,  Charles
complied  with  the notice requirements of the probate  statutes,
thereby affording Joseph and Wayne Jr. sufficient notice  of  the
claims being asserted against them with respect to the Washington
property and, therefore, sufficient due process.41  Lastly,  even
if  the  court did not appreciate that Joseph and Wayne Jr.  were
not  formally  represented by Donnellan and therefore  failed  to
distribute  copies of pre-trial orders to them, it is clear  from
the  e-mails  among Elizabeth, Joseph, and Wayne  Jr.  that  both
Joseph and Wayne Jr. were fully aware of all of the issues raised
by  Charles, the specific nature of the relief sought by Charles,
and  the time and place of trial.  Joseph and Wayne Jr. faced  no
notice-related  impediment  to  appearing  and  participating  at
trial; rather, they intentionally declined to do so.
          Alaska  Statute  13.06.120  describes  the  substantive
notice  requirements for proceedings involving trusts, nonprobate
assets,  or estates of decedents.  Pleadings for such proceedings
must  describe  the interests to be affected .  .  .  [and]  give
reasonable  information to owners by name or class, by  reference
to the instrument creating the interests, or in other appropriate
manner.42  Under AS 13.06.120(3) and AS 13.06.110(a)(1),  service
by  ordinary  first-class mail is sufficient  procedural  notice.
Charles  complied with the method-of-service requirements  of  AS
13.06.110  by mailing a copy of the cross-petition to Joseph  and
Wayne  Jr.  at  their respective addresses, and the  language  of
Charless   cross-petition  satisfied   the   substantive   notice
requirements of AS 13.06.120.43  The record is clear, and there is
no  dispute that Joseph and Wayne Jr. received Charless pleadings
and  were aware of the pendency of the proceedings and the nature
of the relief Charles sought.  Statutory notice requirements were
satisfied.
          Apart  from  these statutory requirements, due  process
requires that any action involving  deprivation of life,  liberty
or  property  by  adjudication must be  preceded  by  notice  and
opportunity for hearing appropriate to the nature of the case. 44
Form  and manner of notice must be  reasonably calculated,  under
          all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to  present
their  objections. 45  In Aguchak, this court recognized that  to
satisfy  due  process, notice must be properly  tailored  to  the
 capacities and circumstances  of the defendant.46
          Joseph  and  Wayne  Jr.  argue  that  the  notice  they
received  was  insufficient  in light  of  their  capacities  and
circumstances,   portraying  themselves  as   lay   persons   who
reasonably  could not anticipate that [] anyone  considered  them
parties  to this case.  They claim they had no reasonable  notice
that  they  had  an obligation to respond or that they  could  be
bound  by the litigation between Charles and Elizabeth.   Charles
responds that e-mail correspondence among the siblings, which  he
obtained through discovery, shows that Joseph and Wayne Jr.  knew
that  they  were  parties  to the case and  participated  in  the
litigation  through  Elizabeth and her  attorney.   (Emphasis  in
original.)
          We  agree with Charles.  Although Joseph and Wayne  Jr.
did  not receive papers directly from the court after they joined
in  Elizabeths  motion to re-open the probate  proceedings,  they
were  formally served with:  (1) the stipulation to  re-open  the
proceedings;  (2)  the  petition to remove  Charles  as  personal
representative;  (3) Charless opposition to the removal  petition
and his cross-petition to establish the express trust; (4) papers
regarding  witness lists, depositions, and Elizabeths  motion  to
stay  Charless  cross-petition; and (5) Elizabeths  and  Charless
post-trial  briefing  (after Joseph  attended  trial  before  the
Standing Master).  There is no dispute that Joseph and Wayne  Jr.
participated  in extensive e-mail communications  with  Elizabeth
about  the  case, and they concede they were aware  of  both  the
nature of the litigation and that Charles sought orders affecting
the  Washington  property.  Joseph and  Wayne  Jr.  had  adequate
notice  and  an  opportunity  to be heard,  and  their  claim  of
inadequate  pre-trial  notice  giving  rise  to  a  due   process
violation is without merit.
          However,  we  are unable to determine from  the  record
before  us whether this holds true with regard to post-trial  due
process  concerns.   When  Standing Master  Closuit  entered  her
findings,  conclusions,  and recommendations,  she  appended  the
requisite  Civil  Rule 53 notice that objections  must  be  filed
within  ten  days.   But  the  papers were  distributed  only  to
attorneys Borgeson and Donellan, and not to Joseph and Wayne Jr.
          We have held that when the court fails to distribute  a
judgment to a party, actual knowledge of the entry of judgment is
necessary  to  trigger  the time for actions  predicated  on  the
courts distribution of the judgment.47  We stated that [i]t would
be inequitable to charge [a party] with the court clerks lapse,48
and  that  observation applies in this context as well.   We  are
unable  to  discern  when Joseph and Wayne Jr. actually  received
knowledge of Standing Master Closuits findings, conclusions,  and
recommendations  and  the notice regarding  the  time  limit  for
objections.  We therefore are unable to determine whether  Joseph
and   Wayne  Jr.  actually  received  adequate  notice   and   an
opportunity  to  be  heard before Judge Wood  entered  his  order
          regarding the Washington property, and we remand for further
proceedings on this narrow issue.
          Standing  Master  Closuits findings,  conclusions,  and
recommendations were issued in December 2004.  Judge Wood did not
issue  his  order  regarding the Washington property  until  June
2005.   On remand the superior court should determine:  (1)  when
Joseph  and  Wayne  Jr.  had  actual  knowledge  of  the  masters
findings, conclusions, and recommendations and the time limit for
objections;  and  (2) whether, before Judge  Woods  final  order,
Joseph  and  Wayne  Jr.  had  an  adequate  opportunity  to  file
objections,  request  oral argument, request  an  opportunity  to
submit  additional  briefing, move for the taking  of  additional
evidence, or seek a trial de novo.49  If Joseph and Wayne Jr. did
not  have  that opportunity before Judge Wood entered  his  final
order,  then  their right to due process requires  that  they  be
afforded that opportunity on remand.  If on the other hand:   (1)
Joseph  and  Wayne Jr. actually knew about the masters  findings,
conclusions,  and  recommendations  and  the  need   for   timely
objections  well before Judge Wood issued his final  ruling;  and
(2)  simply failed to take action on their own behalf, no further
action by the superior court may be necessary.
          3.   Rule 60(b)(1) and (3)
               
          Joseph  and Wayne Jr. argue that Judge Wood abused  his
discretion in denying relief from judgment without an evidentiary
hearing  on  their  Rule 60(b)(1) and (3)  grounds  of  excusable
neglect and misrepresentation.50  They assert that their excusable
neglect stemmed from their reasonable failure to comprehend  that
anyone considered them parties to this case and they blame  their
lack  of  understanding on the circumstances discussed in support
of  their jurisdictional and due process claims.  They base their
misrepresentation theory on erroneous oral and written statements
made by Charless attorney.
               a.   Failure to hold evidentiary hearing
          Joseph and Wayne Jr. assert that Judge Wood abused  his
discretion  by  failing to hold an evidentiary  hearing.51   They
argue  that their affidavit testimony created disputed issues  of
fact  that could not be summarily resolved.  But Joseph and Wayne
Jr. do not cite to anything in the record demonstrating that they
requested  an evidentiary hearing prior to Judge Woods denial  of
their  Rule  60(b)  motion.  Nothing in their memoranda  reflects
either  a request for an evidentiary hearing or an argument  that
factual  disputes precluded a summary disposition of the  motion,
and  the  transcript of the oral argument on the motion fails  to
reveal   any   such  request  or  argument.   Not   until   their
reconsideration motion did Joseph and Wayne Jr. even  imply  that
an  evidentiary  hearing  might have  been  warranted.   Finally,
Joseph  and  Wayne  Jr.  did  not  include  failure  to  hold  an
evidentiary   hearing   or  erroneous  denial   of   motion   for
reconsideration regarding failure to hold an evidentiary  hearing
in their points on appeal.
          Issues  not raised in the superior court and not listed
in  a  statement of points on appeal generally are  not  properly
before us.52  We will consider an issue not raised below or in  a
          statement of points on appeal if it reflects plain error, which
exists  if an obvious mistake has been made which creates a  high
likelihood that injustice has resulted.53
          We cannot conclude that the failure to sua sponte order
an  unrequested  discretionary evidentiary hearing  on  the  Rule
60(b)  motion  was  an  obvious  mistake  that  created  a   high
likelihood  of injustice.  In Stinson v. Holder we held  that  it
was  an  abuse of discretion for the trial court to deny  a  Rule
60(b) motion without holding an evidentiary hearing that had been
expressly requested because the motion papers revealed a  genuine
dispute   about   the   defendants  competence   to   participate
meaningfully in an earlier trial resulting in a judgment  against
him.54  However, we noted that a failure to conduct an evidentiary
hearing  or  resolve  fact disputes does not  inevitably  require
reversal   there  must  also  be a showing  of  prejudice.55   We
concluded   that  in  light  of  the  prima  facie   showing   of
incompetence,  and  the  plausibility  of  his  claim  that   his
incapacity  prejudiced him at trial, the Rule 60(b) motion  could
not  be  decided  without a resolution of  the  factual  disputes
concerning his competence.56
          Given  the  evidentiary record here, it is not  readily
obvious  that:   (1) Joseph and Wayne Jr. presented  a  plausible
claim  that they reasonably failed to comprehend  the  extent  of
their participation in the probate proceedings or that they would
be  bound  by  the results of the trial they helped their  sister
instigate;  or  (2) it would have been an abuse of discretion  to
deny  an evidentiary hearing had one been requested.  Joseph  and
Wayne Jr. made a full and detailed presentation of facts in their
affidavits and in their written and oral legal arguments to Judge
Wood,  and they do not make a persuasive argument that  a  formal
evidentiary  hearing  would have provided  Judge  Wood  with  any
meaningful additions to the record.57  Thus it also is not readily
obvious that the failure to hold an evidentiary hearing, even  if
erroneous, was prejudicial.  Under these circumstances  the  lack
of  an  evidentiary hearing on Joseph and Wayne Jr.s  Rule  60(b)
motion does not warrant reversal.
               b.   Excusable neglect and mistake
          For  relief  based on excusable neglect, a  party  must
show  both neglect and a valid excuse for that neglect.58   Judge
Wood  concluded  that  Joseph and Wayne  Jr.   received  adequate
notice  of  the cross-petition and that their failure  to  defend
their interests was not the result of excusable neglect.  The  e-
mails among Elizabeth, Joseph, and Wayne Jr. support a conclusion
that  the failure to appear and to defend the cross-petition  was
intentional  and strategic, not excusable neglect or  a  mistake.
In  light  of that conclusion and our reasoning regarding  Joseph
and Wayne Jr.s due process arguments, we hold that Judge Wood did
not  abuse  his discretion by rejecting excusable  neglect  as  a
ground for Rule 60(b) relief.
               c.   Misrepresentation
          To obtain Rule 60(b)(3) relief, the moving parties must
prove   by   clear  and  convincing  evidence  that  a   material
misrepresentation  prevented the parties from  fully  and  fairly
presenting their case.59  Joseph and Wayne Jr.s misrepresentation
          theory is based on statements made by Charless attorney,
including:   (1)  an  oral  statement allegedly  made  to  Joseph
shortly before trial indicating that Joseph was not part  of  the
case;  (2)  the  erroneous reference to them  as  petitioners  in
Charless  response  to Elizabeths petition to remove  Charles  as
personal  representative; and (3) an erroneous statement  at  the
start  of  the October 2004 trial that Joseph and Wayne  Jr.  had
filed  motions of joinder in Mrs. Cooks petition and that because
of this, Charles had treated them like parties in this matter.
          Joseph and Wayne Jr. have not met their heavy burden of
showing  clear and convincing evidence in the record  that  these
alleged  misrepresentations  were  not  only  material  but  also
prevented  them  from fully and fairly opposing  Charless  cross-
petition.  Again, the e-mails among Elizabeth, Joseph, and  Wayne
Jr.  demonstrate that the failure to appear and defend the cross-
claim  was  intentional  and strategic, not  the  result  of  any
alleged  misstatements by Charless attorney.  Because Joseph  and
Wayne Jr. failed to meet their burden of proof on this issue,  we
hold  that  Judge Wood did not abuse his discretion by  rejecting
misrepresentation as a ground for Rule 60(b) relief.
     B.   Elizabeths Appeal
          1.   Denial  of  the  petition  to  remove  Charles  as
               personal representative
               
          Alaska  Statute 13.16.295 governs removal  of  personal
representatives for cause and provides in relevant part:
          Cause for removal exists when removal would be  in
          the  best  interests of the estate, or  if  it  is
          shown that a personal representative or the person
          seeking  appointment intentionally  misrepresented
          material  facts in the proceedings leading  up  to
          appointment,  or that the personal  representative
          has  disregarded an order of the court, has become
          incapable of discharging the duties of the office,
          or  has mismanaged the estate or failed to perform
          any duty pertaining to the office.
          
          Although  Elizabeth appealed the denial of her petition
to  remove Charles as personal representative, she did not  brief
the point and has therefore waived it.60  But, in connection with
Elizabeths appeal, Joseph and Wayne Jr. argue that it  was  plain
error  to  deny Elizabeths petition to remove Charles as personal
representative of the estate,61 contending that Charles neglected
his  administrative duties, breached his fiduciary duties, failed
to  present any evidence of any financial accounting  of  his  15
years  of tenure as PR of the Estate, failed to devise a plan  to
generate  income  from the Fairbanks property,   and  refused  to
allow Elizabeth to inspect their fathers memorabilia.
          Charles   argues  that  he  presented   witnesses   and
exhibits,  while  his  siblings did not call  any  witnesses  and
failed  to  present  . . . any evidence that would  require  that
Charles be removed as personal representative for cause.  In that
regard  we  note that the record for review is the  actual  trial
record,  not  the trial record that might have been  created  had
          Elizabeth, Joseph, and Wayne Jr. presented evidence at trial.
          Joseph  and  Wayne  Jr. point to  certain  findings  by
Standing  Master Closuit that Charles had not done  all  that  he
should have done as personal representative.  But Standing Master
Closuit  also found that Charles had worked with an  attorney  to
create  a trust document and had asked the rest of the family  to
transfer their interests in the Washington property to a trust in
2002,  and  that  Charles had received no cooperation.   Standing
Master Closuit stated:
          Although there has been significant delay  in
          complete administration of this estate,  much
          of  the  delay  has been due to  the  familys
          inability  to  agree about the issues  to  be
          resolved by these proceedings.  This  is  not
          to say that delay of 12+ years in the closing
          of  an estate is desirable or commendable and
          there has been some inexcusable delay by  the
          PR  in  completing the actions  necessary  to
          close this estate.
          
Standing  Master Closuit also noted that if Charles were  removed
as  personal  representative, given the discord these proceedings
have  created  in the family, someone outside the  family  likely
would   have   to  be  appointed,  and  having  a  new   personal
representative  and  new  counsel would be  less  efficient  than
ensuring  that  Charles properly completed the administration  of
the estate.  Standing Master Closuit concluded that there was not
a  preponderance of the evidence supporting Charless  removal  as
the  personal  representative, and recommended that  the  removal
petition be denied.
          Judge  Wood accepted the recommendation without further
explanation.   Given the actual evidence at trial, the  findings,
the  explanation  of the recommendation to deny the  petition  to
remove  Charles, and the lack of any obvious mistake  creating  a
high  likelihood  of  injustice, we cannot find  plain  error  or
conclude  that  Judge Wood abused his discretion by  denying  the
motion to remove Charles as personal representative.
          2.   Imposition   of  a  constructive  trust   on   the
               Washington  property and the order to  convey  the
               property  to  the  new express  trust  created  to
               effectuate Fieldss testamentary intent
               
          As  the  original  petitioner for Charless  removal  as
personal representative, Elizabeth had the opportunity to present
her case first.  But as previously planned, Donnellan stated that
Elizabeth was just going to rely on the file to speak for itself.
Borgeson then presented Charless case both in opposition  to  the
removal  petition and in support of the cross-petition  regarding
the Washington property and the unformed residuary trust, calling
two  witnesses  and introducing fourteen exhibits into  evidence.
When  that presentation was completed, counsel moved directly  to
closing  arguments.   Thus the only evidence presented  at  trial
regarding  the  Washington property and  the  unformed  residuary
trust   was  presented  by  Charles,  and  the  standing   master
specifically found the witnesses testimony very credible.
          Based   on  the  evidence  presented,  Standing  Master
Closuit  found that Fields had articulated a clear wish  for  the
Washington property to be held in trust by his four children  for
use  by all of his descendants.  She found that his four children
had  agreed  to  do  this, but that a trust  document  was  never
executed.   She also found that Elizabeth, Joseph, and Wayne  Jr.
refused  to cooperate to convey the Washington property  into  an
appropriate trust.
          Under these conditions, AS 13.36.170(a) authorizes  the
court  to prescribe the conditions for conveying the interest  to
the   settlor  or  the  settlors  successor  in  interest.62    A
constructive  trust  is  an equitable  remedy  available  to  the
superior  court  upon a showing of clear and convincing  evidence
that  the  party  upon whom the trust will be  imposed  has  been
unjustly enriched by receiving assets that belong to the party in
whose  favor the trust will be created.63  Here, Standing  Master
Closuit found clear and convincing evidence that the family  will
be  unjustly enriched if . . . allowed to retain the [Washington]
property  (or  to  sell  or  otherwise  transfer  it)   with   no
restrictions.   She  recommended that the  superior  court  order
Fieldss  heirs  to  convey  their  interests  in  the  Washington
property to the estate.  Judge Wood accepted the standing masters
findings and recommendations.  By imposing the constructive trust
on  the Washington property and ordering Elizabeth, Joseph, Wayne
Jr.,  and  Charles  to convey their interests in  the  Washington
property to the new express residuary trust, Judge Wood exercised
his  equitable power to effectuate AS 13.36.170(a) and to prevent
the  Fields children from retaining property obtained  by  unjust
means.
          Elizabeth presents three indirect challenges  to  Judge
Woods   decision:   (1)  the  court  abused  its  discretion   by
delegating  a  complex real property adjudication to  a  standing
master;64  (2) the court lacked subject matter jurisdiction  over
the  Washington  property because it is protected  by  Washington
law;  and  (3)  Washingtons three-year statute of limitations  on
equitable remedies bars Charless claim.65  Charles responds that:
(1)  Elizabeth waived these defenses by failing to raise them  in
the  superior  court;  (2) even if Washington  law  applied,  the
outcome  would  be the same because Washington applies  the  same
constructive trust principles; and (3) even if Washingtons three-
year  statute  of  limitations applied, his petition  was  timely
because  the limitations period did not begin to run  until  2003
when  his  siblings refused to quitclaim their interests  in  the
Washington property.
               a.   Reference to the probate master
          We  need not consider whether Dean v. Firors limitation
on  references  to  a master66 would preclude referring  Charless
cross-petition to the standing probate master67 because Elizabeth
has  waived this argument.  An important element of Dean v. Firor
is  the  concept of waiver and our holding that a party objecting
to  the  propriety of the reference [to a master]  should  do  so
prior  to  or  at  the time of the reference or at  the  earliest
possible opportunity.68  Elizabeth does not point to anything  in
          the record to demonstrate that she made a peremptory or other
challenge specifically to Standing Master Closuit or generally to
the  fact  that  a master would be conducting the trial,  despite
being  aware  early  on  that Standing Master  Closuit  would  be
conducting  the trial on the two petitions.  Elizabeth  therefore
waived  any  objection  she may have  had  to  the  reference  of
Charless cross-petition to the standing master for trial.
               b.   In rem jurisdiction
          Elizabeth  first  raised a subject matter  jurisdiction
defense in her post-trial brief, conceding that the probate court
has  jurisdiction  to determine the intent of  the  decedent  but
arguing that it would have no jurisdiction to entertain an in rem
action respecting property in Washington.  Elizabeth also appears
to  raise  this argument in her brief here.  But although  it  is
well-settled that courts of one state may not directly affect  or
transfer  title  to real property situated in  another  state,  a
court  may indirectly affect title to property located in another
state  through  its  power  over  individuals  under  the  courts
jurisdiction.69   The  superior courts  authority  to  indirectly
affect title to the Washington property in this case arises  from
its personal jurisdiction over the four owners of the property.
               c.   Washington statute of limitations
          Elizabeth  does not point to anything in the record  to
show  that she objected to the application of Alaska law  instead
of  Washington law at trial, nor did she list erroneous choice of
state  law  as a point on appeal.  In her brief Elizabeth  limits
her   argument  to  contending  that  a  Washington  statute   of
limitations precludes Charless claim for equitable relief.
          Joseph and Wayne Jr. did not raise this issue in  their
Rule  60(b)  motion.  In their points on appeal they asserted  as
error   that  an  unidentified  statute  of  limitations   barred
[Charless]  claim for establishment of a constructive trust,  but
they  did  not brief any issues of Washington law, including  the
statute of limitations.
          We agree with Elizabeth that Rausch v. Devine70 required
the  superior  court  to  apply  Washington  substantive  law  to
Charless equitable claims concerning the Washington property.  We
will  assume  the courts failure to apply substantive  Washington
law  to  Charless  equitable claim is plain error  and  therefore
reviewable  under the circumstances of this appeal,  but  because
the  only  aspect  of Washington law conceivably  raised  by  the
points  on appeal and briefing is the statute of limitations,  we
limit our consideration of Washington law to that issue.71
          Normally  we would first decide whether the  applicable
Washington  statute of limitations is substantive or  procedural.
In Marine Construction & Design Co. v. Vessel Tim,72 we explained
the  difference and its importance.  A statute of limitations  on
the  time for commencing a cause of action is generally a  matter
of procedure and is governed by the law of the forum state.73  But
where  the  cause  of action is governed by  foreign  law  and  a
provision  for  a time limitation is directed so specifically  to
the  cause of action that it is a condition of the right to bring
suit,  the foreign limitation provision will govern the right  to
bring suit.74
          We  need  not  reach this threshold issue here  because
under  the  laws  of  both Washington and Alaska,  a  statute  of
limitations defense not raised before or at trial is waived.75  We
accordingly  reject  the specification of error  for  failure  to
apply  Washingtons three-year statute of limitations to  Charless
cross-petition.
V.   CONCLUSION
          We AFFIRM the superior courts denial of the petition to
remove  the  personal representative of the estate  and  find  no
merit  in the substantive legal arguments currently before us  on
appeal  challenging the superior courts analysis and decision  to
impose a constructive trust over the Washington property.  But we
REMAND  for  a  determination of whether  Joseph  and  Wayne  Jr.
received  due process-compliant post-trial notice and opportunity
to  be  heard on the standing masters findings, conclusions,  and
recommendations prior to entry of the superior courts order.
_______________________________
     1    AS 13.16.295(a) provides in relevant part:

          A   person  interested  in  the  estate   may
          petition    for   removal   of   a   personal
          representative for cause at any  time.   Upon
          filing of the petition, the court shall fix a
          time and place for hearing.  Notice shall  be
          given  by  the  petitioner  to  the  personal
          representative, and to other persons  as  the
          court may order.
          
     2     Distribution and service of documents on the attorneys
is  not at issue; our discussion here will center on distribution
and   service  of  documents  on  the  technically  unrepresented
parties, Joseph and Wayne Jr.

     3    Alaska Civil Rule 60(b)(1), (3), and (4) provide:

          (b)   On  motion and upon such terms  as  are
          just,  the  court may relieve a  party  or  a
          partys  legal  representative  from  a  final
          judgment,  order,  or  proceeding   for   the
          following reasons:
          
          (1)    mistake,  inadvertence,  surprise   or
          excusable neglect;
          
          . . . .
          
          (3)   fraud  (whether heretofore  denominated
          intrinsic  or  extrinsic), misrepresentation,
          or other misconduct of an adverse party;
          
          (4)  the judgment is void . . . .
          
     4     Helgason  v.  Merriman, 36 P.3d  703,  705-06  (Alaska
2001).

     5    Id. at 706 (citing Bowman v. Blair, 889 P.2d 1069, 1072
n.5 (Alaska 1995)).

     6    See Riddell v. Edwards, 76 P.3d 847, 852 (Alaska 2003).

     7    Williams v. Crawford, 982 P.2d 250, 254 (Alaska 1999).

     8    See Kopanuk v. AVCP Regl Hous. Auth., 902 P.2d 813, 816
(Alaska  1995)  (citing Kennecorp Mortgage &  Equities,  Inc.  v.
First Natl Bank of Fairbanks, 685 P.2d 1232, 1236 (Alaska 1984)).

     9     Gilbert  M. v. State, 139 P.3d 581, 586 (Alaska  2006)
(citing  Sopko v. Dowell Schlumberger, Inc., 21 P.3d  1265,  1269
(Alaska 2001)).

     10     S.B. v. State, Dept of Health & Soc. Servs., Div.  of
Family & Youth Servs., 61 P.3d 6, 10 (Alaska 2002) (alteration in
original)  (quoting McCaffery v. Green, 931  P.2d  407,  408  n.3
(Alaska 1997)).

     11    Id.

     12    Id. (internal quotation omitted).

     13     The record nonetheless reflects that the papers filed
by  Donnellan,  like  the  papers  filed  by  Charless  attorney,
contained certificates of service for Joseph and Wayne  Jr.   See
supra pp. 4-6.

     14     See 1 Uniform Probate Code Practice Manual 2-3, 29-32
(Am. Law Inst., 2d ed. 1977).

     15      AS   22.10.020(a)  (superior  court   has   original
jurisdiction  over  probate matters); AS 13.06.050(7)  (court  in
probate  statutes  means superior court);  Briggs  v.  Estate  of
Briggs,  500  P.2d 550, 554 (Alaska 1972).  Had  the  legislature
intended  the  superior courts probate jurisdiction  to  be  more
limited,  it  would have specified any exclusions in  unambiguous
terms  as  it  did  with  respect to  district  courts.   See  AS
22.15.050(1)-(2)  (The jurisdiction of the district  courts  does
not  extend to (1) an action in which the title to real  property
is  in question; (2) an action of an equitable nature, except  as
otherwise provided by law.).

     16    Cf. Alaska R. Prob. P. 2(a)-(f).

     17    AS 13.06.050(7).

     18     AS 13.06.065(1)-(2).  AS 13.06.060(1), (5) provide  a
territorial  limitation  on the superior  courts  subject  matter
jurisdiction, so that it applies to decedents domiciled  in  this
state and to trusts subject to administration in this state.

     19    Briggs, 500 P.2d at 554.

     20    Id. at 550

     21    Id. at 551.

     22    Id. at 551, 553-54.

     23    Id. at 551.

     24    Id.

     25    Id. at 553-54.

     26    AS 13.06.050(53) provides:

          [T]rust includes an express trust, private or
          charitable,  with  additions  to  the  trust,
          wherever  and  however  created;  trust  also
          includes  a  trust created or  determined  by
          judgment  or decree under which the trust  is
          to  be  administered  in  the  manner  of  an
          express    trust;   trust   excludes    other
          constructive   trusts,   resulting    trusts,
          conservatorships,  personal  representatives,
          trust   accounts  that  are  POD  designation
          accounts   under  AS  13.33.201    13.33.227,
          custodial arrangements under AS 13.26  or  AS
          13.46,   business   trusts   providing    for
          certificates  to be issued to  beneficiaries,
          common  trust funds, voting trusts,  security
          arrangements, liquidation trusts, trusts  for
          the   primary   purpose  of   paying   debts,
          dividends,    interest,   salaries,    wages,
          profits,  pensions, or employee  benefits  of
          any  kind, and any arrangement under which  a
          person is nominee or escrowee for another [.]
          
     27    76 P.3d 847 (Alaska 2003).

     28    Id. at 852 (quoting McKnight v. Rice, Hoppner, Brown &
Brunner,  678  P.2d  1330,  1335 (Alaska  1984))  (alteration  in
original).

     29    Id. at 849, 852-54.

     30    The rule provides as follows:

          Rule 2.  Appointment and Authority of Masters
          
          (a)  Appointment.   The presiding  judge  may
          appoint a standing master to conduct  any  or
          all  of  the  probate proceedings  listed  in
          subparagraph (b)(2). . . .
          
          (b) Authority, Order of Reference.
          
          1.    An  order  of reference specifying  the
          extent of the masters authority and the  type
          of  appointment must be entered in every case
          assigned to a master.  The order of reference
          must be served on all parties.
          
          2.     The   following  proceedings  may   be
          referred to a master:
          
               A.   all decedent estate hearings[.]
          
     31    Alaska R. Prob. P. 2(b), (e).

     32    Alaska R. Prob. P. 2(b)(3) (masters report not binding
until approved by a superior court judge).

     33    Alaska R. Prob. P. 2(f)(1).

     34    Polar Supply Co., v. Steelmaster Indus., Inc., 127 P.3d
52,  55 (Alaska 2006) (quoting Cramer v. Wade, 985 P.2d 467,  471
(Alaska  1999));  see  also Am. Natl Bank &  Trust  Co.  v.  Intl
Seafoods  of  Alaska,  Inc.,  735 P.2d  747,  749  (Alaska  1987)
(quoting  AS  09.05.015  (authorizing  Alaska  courts  to  assert
jurisdiction to the maximum extent permitted by due process.)).

     35     326  U.S. 310, 316 (1945) (quoting Milliken v. Meyer,
311 U.S. 457, 463 (1940)).

     36     Glover  v.  W. Air Lines, Inc., 745 P.2d  1365,  1367
(Alaska  1987)  (citing Helicopteros Nacionales  de  Colombia  v.
Hall, 466 U.S. 408, 414 & n.8 (1984)).

     37     Polar  Supply,  127  P.3d  at  57  (quoting  Jonz  v.
Garrett/Airesearch  Corp.,  490 P.2d  1197,  1199  (Alaska  1971)
(citing Intl Shoe, 326 U.S. at 319)).

     38     The  superior courts finding of personal jurisdiction
over  Wayne  Jr.  was  based on his submi[ssion]  to  the  Courts
jurisdiction  when [Elizabeth] filed the petition to  remove  the
personal  representative in this matter.  Wayne  Jr.  joined,  as
noted  above, in Elizabeths motion to re-open the estate, not  in
her  petition  to  remove Charles as the personal representative.
But  by  voluntarily appearing without any stated limitations  in
connection  with  a  notice to re-open  the  probate  proceedings
generally,  as opposed to a specific petition for relief,  Joseph
and  Wayne Jr.s consent to personal jurisdiction for all  matters
relating  to  or  arising from the probate  proceedings  is  more
readily  found.   See,  e.g., Alaska R. Civ.  P.  81(c)  (general
appearance  by  counsel);  id. at 81(d)  (limited  appearance  by
counsel).

     39    Kenai Peninsula Borough v. English Bay Vill. Corp., 781
P.2d 6, 8-9 (Alaska 1989).

     40    520 P.2d 1352 (Alaska 1974).

     41     We  do not reach the question whether, or under  what
circumstances,  compliance with the notice  requirements  of  the
probate  statutes  by  itself is sufficient to  perfect  personal
jurisdiction over a party who has neither voluntarily appeared in
a  probate  proceeding nor been served in accordance  with  Civil
Rule  4.   Cf.  AS  09.05.015(a) (providing that courts  personal
jurisdiction over a person is predicated on service according  to
the  rules  of  civil  procedure.).  See generally  American  Law
Institute, supra note 14, at 31-32 (stating that statutory notice
is   traditionally  sufficient  for  in  rem  or  quasi  in   rem
jurisdiction  in  probate  proceedings,  but  that  some  probate
proceedings may require service under general standards of  civil
procedure).

     42    AS 13.06.120(1).

     43     Charless attorney also mailed a copy of his answer to
Elizabeths   petition   to  remove  Charles   as   the   personal
representative  to Joseph and Wayne Jr.  This pleading  discussed
Charless interest in a court-established trust for the Washington
property.

     44     Aguchak, 520 P.2d at 1356 (quoting Mullane  v.  Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)).

     45    Id. (quoting Mullane, 339 U.S. at 314).

     46     Id. at 1357 (quoting Goldberg v. Kelly, 397 U.S. 254,
268-69 (1970)).

     47     Princiotta  v. Mun. of Anchorage, 785 P.2d  559,  561
(Alaska 1990).

     48    Id.

     49    Alaska R. Prob. P. 2(f).

     50    Alaska R. Civ. P. 60(b) (On motion and upon such terms
as  are  just,  the court may relieve a party or a  partys  legal
representative  from a final judgment, order, or  proceeding  for
the  following reasons:  (1) mistake, inadvertence,  surprise  or
excusable neglect; . . . (3) fraud . . . , misrepresentation,  or
other misconduct of an adverse party. . . .).

     51     Joseph  and Wayne Jr. do not cite to any  Rule  60(b)
cases  regarding denial of an evidentiary hearing or the  general
standard  of review.  In Stinson v. Holder, 996 P.2d  1238,  1242
(Alaska  2000), we noted that the grant of an evidentiary hearing
for  a  Rule  60(b)  motion is generally reviewed  for  abuse  of
discretion.

     52     Alaska  R.  App. P. 204(e) (providing that  appellate
court  will  consider only issues included in  the  statement  of
points  on appeal); Jeffries v. Glacier State Tel. Co., 604  P.2d
4, 11 (Alaska 1979).

     53    Miller v. Sears, 636 P.2d at 1189.

     54    996 P.2d at 1242.

     55    Id.

     56    Id.

     57     The  evidence they apparently wished to  present  was
live,  but  duplicative,  testimony  about  their  alleged  prior
subjective understandings.  We have noted in another context that
self-serving  litigation-related expressions of prior  subjective
intent or understanding are generally not considered probative of
parties  reasonable  expectations  when  they  entered   into   a
contract;  the  court instead must look to express manifestations
of  each  partys understanding.  See Peterson v. Wirum, 625  P.2d
866,  870  (Alaska 1981).  This does not preclude  a  party  from
testifying  about  its understanding in objective  terms  .  .  .
sufficiently detailed to enable [trier of fact] to form  its  own
judgment  as  to the reasonableness of [the partys understanding]
and  the  likelihood that [the other party] would have  the  same
understanding.   Alaska  Tae  Woong  Venture,  Inc.  v.  Westward
Seafoods, Inc., 963 P.2d 1055, 1067 (Alaska 1998).  Here,  Joseph
and   Wayne   Jr.  already  expressed  their  alleged  subjective
understanding  that they neither were parties  to  nor  could  be
bound  by  the  proceedings  in their affidavit  testimony.   The
objective facts giving rise to the alleged understanding were not
much  disputed:   they  had notice of the proceeding;  they  were
aware of the nature and scope of relief Charles sought; and  they
participated  in  strategizing and preparing for  trial,  telling
Elizabeth to take the ball and . . . run for them.  The  ultimate
issue before Judge Wood was whether Joseph and Wayne Jr.s alleged
subjective understanding was objectively reasonable given all  of
the  objective evidence presented, but Joseph and Wayne Jr.  make
no  showing  that an evidentiary hearing was necessary  for  this
determination.

     58    Dickerson v. Williams, 956 P.2d 458, 465 (Alaska 1998)
(citation omitted).

     59    Harris v. Westfall, 90 P.3d 167, 173 (Alaska 2004).

     60     Wasserman v. Bartholomew, 38 P.3d 1162, 1171  (Alaska
2002)  (finding  waiver when party listed  point  on  appeal  but
failed to brief it).

     61     Joseph  and  Wayne Jr. acknowledge  that  to  sustain
Elizabeths appeal on this issue they must show that the  superior
court  committed plain error because there were no objections  to
the  standing  masters  proposed findings ultimately  adopted  by
Judge  Wood.  Duffus v. Duffus, 72 P.3d 313, 318-19 (Alaska 2003)
(failing  to object at the trial court level to masters  proposed
child support calculations precluded appellate review except  for
plain error).

     62    In relevant part AS 13.36.170 provides:

          When an interest in real property is conveyed
          by  deed  to  a  person in a  trust  that  is
          unenforceable  under AS 09.25.010   09.25.020
          and  the  intended trustee  or  the  trustees
          successor in interest holds title but refuses
          to  carry  out the trust because  of  AS  09.
          25.010   09.25.020, the intended  trustee  or
          the  trustees  successor in interest  .  .  .
          shall convey the interest in real property to
          the  settlor  or  the settlors  successor  in
          interest.   A  court having jurisdiction  may
          prescribe  the  conditions for conveying  the
          interest  to  the  settlor  or  the  settlors
          successor in interest.
          
          A  settlor  is  one  who sets up a trust.   Blacks  Law
Dictionary 1405 (8th ed. 2004).  Thus Fields was the settlor  and
his  successors in interest are his estate and the trust he named
in his will for the disposition of his residuary estate.

     63    Riddell, 76 P.3d at 852.

     64    (CitingElizabeth cites Dean v. Firor, 681 P.2d 321, 328
(Alaska 1984) (holding that because questions of law lie  with  a
judge,  it  was  error to refer to a master to decide  whether  a
fraudulent conveyance of real property occurred).

     65    (Citing Elizabeth cites Rausch v. Devine, 80 P.3d 733,
742  (Alaska 2003) (discussing existence and extent of  equitable
interests in land governed by law of lands situs) and Wash.  Rev.
Code   4.16.080(3)  (providing three-year limitation  period  for
action on oral contract or liability).)

     66    See supra note 60.

     67     Probate  and similar rules established by this  court
expressly authorize and  delineate the use of masters in specific
proceedings.  See, for example, Alaska Rule Probate Procedure  2,
Alaska Adoption Rule 3, CINA Rule 4, and Alaska Delinquency  Rule
4,  all  of which post-date Dean v. Firor.  The dispute  in  this
case  appears  to  have encompassed a variety of matters  clearly
within  a probate masters expertise and the authority to  conduct
all  hearings related to the decedents estate, including  factual
issues  of  the  decedents  intent  and  application  of  probate
statutes for estates and trusts.

     68    Dean, 681 P.2d at 326-27.

     69     Sylvester  v. Sylvester, 723 P.2d 1253, 1260  (Alaska
1986) (citing Fall v. Eastin, 215 U.S. 1, 8-12 (1909)).

     70    80 P.3d at 742.

     71      Charles  argues,  without  contest,  that  with  the
exception  of  the applicable statute of limitations,  Washington
law  on  constructive  trusts  essentially  mirrors  Alaska  law.
Compare  Riddell,  76  P.3d at 852 (constructive  trust  properly
imposed  to prevent unjust enrichment when someone unfairly  held
property that rightfully belonged to another), with Scymanski  v.
Dufault,  491 P.2d 1050, 1057 (Wash. 1971) (A constructive  trust
may  arise  even  though  acquisition of  the  property  was  not
wrongful.  It  arises where the retention of the  property  would
result in the unjust enrichment of the person retaining it.),  In
re Marriage of Lutz, 873 P.2d 566, 571 (Wash. App. 1994) (A court
sitting  in equity will impose a constructive trust if  there  is
clear,   cogent,  and  convincing  evidence  of  the  basis   for
impressing  the trust.), and Proctor v. Forsythe, 480  P.2d  511,
514 (Wash. App. 1971) (A constructive trust arises where a person
holding  title  to  property is subject to an equitable  duty  to
convey  it  to  another on the ground that he would  be  unjustly
enriched  if he were permitted to retain it.).  We do  not  reach
this issue.

     72    434 P.2d 683 (Alaska 1967).

     73    Id. at 686.

     74    Id. at 686-87.

     75     See  Barrett v. Byrnes, 556 P.2d 1254,  1255  (Alaska
1977); Boyle v. Clark, 287 P.2d 1006, 1009-10 (Wash. 1955).

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