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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Aldrich v. Aldrich (10/5/2012) sp-6714

Aldrich v. Aldrich (10/5/2012) sp-6714

        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, email 

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                 THE SUPREME COURT OF THE STATE OF ALASKA 



STEPHEN J. ALDRICH JR.,                         ) 

                                                )       Supreme Court No. S-14238 

                        Appellant,              ) 

                                                )       Superior Court No. 3AN-04-06155 CI 

        v.                                      ) 

                                                )       O P I N I O N 

KRISTIN K. ALDRICH,                             ) 

                                                )      No. 6714 - October 5, 2012 

                        Appellee.               ) 

                                                ) 



                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Anchorage, Sen K. Tan, Judge. 



                Appearances:       Stephen     J.  Aldrich,   Jr.,  pro  se,  Wasilla, 

                Appellant.  Kristen K. Aldrich, pro se, Chesapeake, Virginia, 

                Appellee. 



                Before:      Carpeneti,     Chief   Justice,   Fabe,   Winfree,     and 

                Stowers, Justices. [Christen, Justice, not participating.] 



                CARPENETI, Chief Justice. 



I.      INTRODUCTION 



                A divorced couple with one child agreed in 2006 that the mother would 



cover all of the child's travel costs in lieu of paying child support.           The superior court 



approved the couple's agreement.           In 2010, the father filed a motion arguing that the 



2006 agreement was invalid under Alaska Civil Rule 90.3, which had not been addressed 



in   the superior court's original order.        The father requested   that child   support   from 



August 2006 through June 2010 be recalculated under Rule 90.3, with the mother paying 


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arrearages.     The superior court denied the father's motion for retrospective relief, but 



allowed prospective relief.        The father appealed.        Because the father did not file his 



motion challenging the original order within one year, as required under Alaska Civil 



Rule    60(b)(1),    we   affirm   the   denial   of  the  father's   motion     insofar   as  it  sought 



retrospective relief.    Because the 2006 order violated Rule 90.3, we affirm the grant of 



prospective relief. 



II.     FACTS AND PROCEEDINGS 



                Stephen Aldrich and Kristin Aldrich divorced in 2001. Kristin received full 



legal and primary physical custody of the couple's son, Joshua Aldrich (born in 1993). 



For the next five years, Joshua lived with Kristin in Virginia.   Stephen lived in Alaska, 



and Joshua visited him for up to 12 weeks a year. 



                On September 20, 2006, the superior court issued an order approving a 



stipulation between the parties that modified their child custody, visitation, and child 



support arrangement.        Under the 2006 order, Stephen and Kristin shared legal custody 



of Joshua, and Stephen received primary physical custody. The stipulation, prepared pro 



se and signed by both parties in August 2006, was based in part on Joshua's preference 



to live with his father. 



                The   superior   court's   2006   order   also   provided,   in   accordance   with   the 



stipulation, that Kristin would "be responsible for reserving and purchasing appropriate 



airline tickets.   She is agreeing to pay 100% of all travel costs in lieu of paying child 



support to [Stephen]." The stipulation stated at greater length:  "The parties have agreed 



that   Stephen   will   not   request   child   support   from   Kristin.   Instead,   Kristin   will   be 



responsible for 100% of Joshua's travel costs to and from Virginia for the purpose of 



visitation with his mother.       This will amount to less than her estimated child support 



obligation."     In   addition,   the   stipulation   stated   that   "[b]oth   parties   will   continue   to 



                                                   -2-                                             6714
 


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equally share the cost of Joshua's health, vision and dental care and cell phone," and that 

"[t]he parties agree that these modifications are in Joshua's best interest . . . ."1 



                 Neither the superior court order nor the stipulation mentions Rule 90.3, 

which establishes rules for child support awards2 as well as permissible exceptions to 



those rules.3   Nor does the superior court order specify the reason for allowing a variation 



from the rules.4     Nor does the superior court order specify, as the rule requires in cases 



where the court's order diverges from the rule, "the amount of support which would have 



been required but for the variation, and the estimated value of any property conveyed 

instead of support calculated under the other provisions of this rule."5 



                 In June 2010, Stephen filed a "Motion to Enforce Custody Agreement  and 



for Support Award" (motion for past child support).                 The motion referred to "several 



substantial changes in circumstance" since the 2006 agreement and requested that the 



court enforce portions of the agreement with which Kristin allegedly failed to comply. 



Stephen specifically requested that the superior court "issue a child support award on 



Joshua's   behalf   effective   August   15,   2006   through   the   date   of   this   filing,   assessing 



arrearages under [Alaska Civil Rule] 90.3 since the parental agreement waiving support 



        1        The   superior   court   later   stated   that,   prior   to   issuing   the   2006   order,   it 



reviewed a child support guidelines affidavit filed with the court in September 2006. 

Stephen's affidavit lists his total income as $82,752.81, while Kristin's affidavit lists her 

total   income   as   $22,596.     The   affidavits   suggest   that,   in   the   absence   of   the   2006 

agreement, Stephen's annual child support therefore would have been $13,840.16, while 

Kristin's would have been $4,136.32. 



        2        Alaska R. Civ. P. 90.3(a)-(b). 



        3        Alaska R. Civ. P. 90.3(c). 



        4        See id . 



        5        Alaska R. Civ. P. 90.3(c)(1). 



                                                    -3-                                               6714
 


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has no legal basis."   The motion argued that the 2006 agreement waiving Kristin's child 



support obligations was invalid under Rule 90.3 and that the superior court should order 



Kristin to pay the child support she did not pay from 2006 onward as a result of the 



agreement. 



                In October 2010, the superior court issued an order rejecting Stephen's 



request for past child support but allowing modification prospectively.               Stephen filed a 



motion for reconsideration.   On February 25, 2011, the superior court denied Stephen's 



motion for reconsideration and entered a final child support order, establishing Kristin's 



child support obligation effective July 1, 2010. 



                Stephen appeals pro se.  Though Stephen presents his appeal as containing 



seven points, and divides his argument on appeal into three arguments, the appeal in 



reality concerns two issues: whether it was error to deny Stephen's 2010 request for past 

child support from Kristin and whether Stephen was entitled to prospective relief.6 



III.    STANDARD OF REVIEW 



                We "review orders denying Alaska Civil Rule 60(b) relief for abuse of 

discretion."7   We also review child support awards for abuse of discretion.8 An abuse of 



        6       Stephen presents his appeal as an appeal from the superior court's denial 



of his motion for reconsideration. But his argument is directed entirely toward the merits 

of   his   underlying   motion   for   past   child   support   and   does   not   address   the   specific 

standards governing review of denied motions for reconsideration.  Thus, we approach 

the appeal as though it were an appeal from the superior court's October 2010 denial of 

Stephen's motion for past child support. 



        7       Cook   v.   Cook,   249   P.3d   1070,   1077   (Alaska   2011)   (citing Morgan   v. 



Morgan , 143 P.3d 975, 976 (Alaska 2006); Princiotta v. Municipality of Anchorage , 785 

P.2d 559, 562 (Alaska 1990)). 



        8       Laughlin v. Laughlin , 229 P.3d 1002, 1004 (Alaska 2010 (quoting Harvey 



v. Cook, 172 P.3d 794, 797 (Alaska 2007)) (internal quotation marks omitted). 



                                                  -4-                                            6714
 


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discretion exists only where we are "left with the definite and firm conviction on the 

whole record that the judge . . . made a mistake."9 



IV.     DISCUSSION 



        Stephen's Motion For Past Child Support Was Untimely Under Alaska Civil 

        Rule 60(b). 



                Stephen did not style his motion for past child support as a motion for relief 



from an order under Alaska Civil Rule 60.             The motion does not cite Rule 60, and is 



entitled "Motion To Enforce Custody Agreement and for Support Award."                      But in his 



superior court brief   Stephen characterized the motion as a request under Rule 60(b)(4) 



or   (6)   for   relief   from   the   2006   order   based   on   that   order's   invalidity. In   the   order 



denying Stephen's motion, the superior court treated Stephen's motion for past child 



support as a Rule 60(b) motion:        "Essentially, [Stephen] is asking the court to set aside 



the stipulation and order of the court entered in August 2006, and for the court to set 



child support effective August 15, 2006."          The superior court did not determine which 



section of Rule 60(b) applied, but the court reasoned that in any event "the motion was 

not brought within a 'reasonable time.' "10 



                Civil Rule 60(b) allows relief from a judgment, order, or proceeding for the 



following reasons: 



                (1) mistake, inadvertence, surprise or excusable neglect; 



                (2) newly discovered evidence which by due diligence could 

                not have   been   discovered   in   time   to   move for   a new   trial 

                under Rule 59(b); 



        9       Thomas v. Thomas, 581 P.2d 678, 679 (Alaska 1978) (quoting Gravel v. 



Alaskan Vill., Inc. , 423 P.2d 273, 277 (Alaska 1967)). 



        10      See Alaska R. Civ. P. 60(b). 



                                                  -5-                                              6714 


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                 (3)  fraud    (whether     heretofore     denominated      intrinsic   or 

                 extrinsic),    misrepresentation,      or  other   misconduct      of  an 

                 adverse party; 



                 (4) the judgment is void; 



                 (5) the judgment has been satisfied, released, or discharged, 

                 or a prior judgment upon which it is based has been reversed 

                 or   otherwise   vacated,   or   it   is   no   longer   equitable   that   the 

                judgment should have prospective application; or 



                 (6) any other reason justifying relief from the operation of the 

                judgment. 



Rule 60(b) also provides that "[t]he motion shall be made within a reasonable time, and 



for   reasons   (1),   (2)   and   (3)   not   more   than   one   year   after   the   date   of   notice   of   the 

judgment or orders . . . ." 11 



                 In his points on appeal, Stephen argued that "[t]he Superior Court erred in 



ruling that too much time had passed to reverse the parental agreement."  He contended 

that a "similar parental agreement was vacated" in Laughlin v. Laughlin ,12 "and child 



support was recalculated for a period of time only 9 months shorter than the amount of 



time in this case." But in his brief on appeal, Stephen did not address the superior court's 



conclusion   that   Stephen's   motion        was   untimely.    Stephen     merely   summarizes   the 



superior court's statements regarding Rule 60 in passing.                Stephen also did not file a 



reply brief responding to Kristin's argument supporting the superior court's reasoning 



under Rule 60(b). In short, Stephen has not disputed the superior court's characterization 



of his motion as a motion for relief under Rule 60(b). 



                 Because all motions for relief under   Rule   60(b) must be filed within a 



reasonable time, while only motions under Rule 60(b)(1)-(3) must be filed within one 



        11       Alaska R. Civ. P. 60(b). 



        12       229 P.3d 1002 (Alaska 2010). 



                                                   -6-                                                6714 


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year, there is a preliminary issue as to whether Stephen's motion for past child support 



falls under subsections (1)-(3).         The superior court avoided confronting this issue by 



concluding   that Stephen's motion was not filed within a reasonable time - so that 



whether or not the motion fell under subsections (1)-(3), it was untimely. 



                 In his motion for past child support, Stephen argued that the superior court 



erred in its 2006 order by failing to apply Rule 90.3. In his hearing brief Stephen implied 



that the court's legal error rendered the order void, which would fall under Rule 60(b)(4). 



We disagree.  An order is not void simply because it was legally erroneous. For an order 

to be void, some more fundamental flaw must be present.13                A judgment or order is void 



                 where the state in which the judgment was rendered had no 

                jurisdiction to subject the parties or the subject matter to its 

                 control, or where the defendant was not given proper notice 

                 of   the   action  and   opportunity     to  be   heard,   or   where   the 

                judgment was not rendered by a duly constituted court with 

                 competency   to   render   it,   or   where   there   was   a   failure   to 

                 comply with such requirements as are necessary for the valid 

                 exercise of power by the court.[14] 



Stephen   does   not   argue   that   the   superior   court's   judgment   displayed   any   of   these 



fundamental flaws.        Nor does a review of the record suggest that any such flaws were 



present. 



        13       See   Rowland      v.   Monsen,   135    P.3d   1036,   1038    (Alaska    2006)    ("The 



untimeliness of a motion or the inadequacy of findings are not fundamental flaws that 

would make an order void.") (citing Burrell v. Burrell , 696 P.2d 157, 163 & n.11 (Alaska 

1984)). 



        14      Id. (quoting Burrell , 696 P.2d at 163 n.11 (Alaska 1984)); see also Aguchak 



v. Montgomery Ward Co. , 520 P.2d 1352, 1354 (Alaska 1974) ("A judgment is void and 

subject to attack . . . if the court that rendered it lacked personal jurisdiction over the 

defendant, or if it acted in a manner inconsistent with due process of law." (footnotes 

omitted)). 



                                                    -7-                                              6714
 


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                 Stephen's   request   for   past   child   support   thus   does   not   fall   under   Rule 



60(b)(4),   relief   from   an   order   because   "the   judgment   is   void."   It   falls   under   Rule 



60(b)(1), relief from an order based on "mistake, inadvertence, surprise or excusable 



neglect." It is immaterial whether the failure to address Rule 90.3 in the 2006 stipulation 



and order is characterized as Stephen's error or the court's.   An error of law made by the 



court or by a party through mistake, inadvertence, or excusable neglect can constitute 

grounds for granting a party relief from a final judgment under Rule 60(b)(1).15                 Because 



subsection (1) applies, subsection (6), relief "for any other reason," does not apply.16 



                 As a motion for relief under Rule 60(b)(1), Stephen's motion for past child 



support had to be made "within a reasonable time, and . . . not more than one year after 

the date of notice of the . . . order[]."17       But Stephen did not file his motion until June 



2010, nearly four years after notice of the September 2006 order.  Stephen's motion for 



past child support under Rule 60(b) was thus untimely, and the superior court did not 



abuse its discretion in denying it. 



                 Stephen's invocation of Laughlin  as a precedent for the relief he seeks is 



misplaced.     It is true that the trial court in Laughlin neglected to apply Rule 90.3 in a 



manner similar to that of the trial court in this case, and that we reversed the trial court 



in Laughlin  on that basis.       But Laughlin was a timely appeal from an erroneous final 



        15       See Alaska Truck Transp., Inc. v. Berman Packing Co., 469 P.2d 697, 698- 



99 (Alaska 1970) (citing among others Fleming v. Huebsch Laundry Corp. , 159 F.2d 

581, 585 (7th Cir. 1947)). 



        16       See Richard v. Boggs, 162 P.3d 629, 635 (Alaska 2007) ("A party may only 



obtain   Rule   60(b)(6)   relief   if   no   other   Rule   60(b)   clause   applies."   (citing Lacher   v. 

Lacher , 993 P.2d 413, 419 (Alaska 1999))). 



        17       Alaska R. Civ. P. 60(b). 



                                                    -8-                                              6714
 


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order, not an appeal from the denial of an untimely motion for relief under Rule 60(b).18 



If Stephen had timely appealed the superior court's 2006 order as the appellant appealed 



the final order in Laughlin , the outcome of this case might be very different.  But he did 

not, and "a Rule 60(b) motion is not a substitute for the usual appellate mechanism."19 



Thus, we affirm  the superior court's denial of Stephen's motion for retrospective relief 

because the motion was untimely.20 



        18     Laughlin , 229 P.3d at 1003-04. 



        19     Anderson v. State, Dep't of Highways , 584 P.2d 537, 540 (Alaska 1978). 



We do not reach the issue of whether, had his Rule 60(b) motion been timely, Stephen 

would have been entitled to the retrospective relief that he sought.  Civil Rule 90.3(h)(2) 

generally provides that "[c]hild support arrearage may not be modified retroactively, 

except as allowed by AS 25.27.166(d)."          We have not previously addressed whether 

Rule 90.3(h)(2)'s prohibition on retroactive modification applies where a party seeks 

relief from judgment under Rule 60(b), but we note that the language of Rule 90.3(h)(2) 

is not limited merely to instances where a party files a motion or petition for modification 

of child support.  Nonetheless, it is clear that, to the extent that Stephen's motion for past 

child support would be interpreted solely as a motion to modify child support under Rule 

90.3(h), Rule 90.3(h)(2) bars the retroactive modification that he seeks. 



        20     We decline to affirm the denial of Stephen's motion on the merits.  Indeed, 



the superior court's order of October 11, 2010, holding that the parties' 2006 waiver of 

child support satisfied the requirements of Civil Rule 90.3(c)(1), appears to be plain 

error.  That rule requires that, if the court varies the support award from that specified 

in subsection (a) or (b), the court "must specify in writing the reasons for the variation, 

the amount of support which would have been required but for the variation, and the 

estimated value of any property conveyed instead of support calculated under the other 

provisions of this rule." 



               As noted above in the text, the superior court's order, which makes no 

reference to Civil Rule 90.3, does not specify the reason for allowing a variation from 

the default rules and does not specify "the amount of support which would have been 

required but for the variation, and the estimated value of any property conveyed instead 

of   support   calculated    under   the  other   provisions   of  this  rule,"  as  required   by 

                                                                                   (continued...) 



                                                -9-                                          6714
 


----------------------- Page 10-----------------------

 V.    CONCLUSION 



              Because Stephen's motion for past child support was untimely under Rule 



60(b)(1), we AFFIRM the superior court's denial of Stephen's motion. 



       20     (...continued) 



subsection (c). 



                                            -10-                                        6714 

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