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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
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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