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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. McCarter v. McCarter (7/5/2013) sp-6794

McCarter v. McCarter (7/5/2013) sp-6794

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

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DAVID J. MCCARTER, JR.,                            ) 

                                                   )   Supreme Court No. S-14640 

                        Appellant,                 ) 

                                                   )   Superior Court No. 4FA-07-01070 CI 

        v.                                         ) 

                                                   )   O P I N I O N 

DEBORAH A. MCCARTER (n/k/a                         ) 

DEBORAH A. VALDEZ),                                ) 

                                                   )   No. 6794 - July 5, 2013 

                        Appellee.                  ) 


                Appeal   from     the  Superior   Court   of   the  State  of   Alaska, 

                Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge. 

                Appearances:      Richard W. Postma, Jr., Law Offices of Dan 

                Allan & Associates, Anchorage, for Appellant.             Annmarie 

                Billingsley, Foster & Rogers, LLC, Fairbanks, for Appellee. 

                Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and 

                Bolger, Justices. 

                MAASSEN, Justice. 


                This    is  an  appeal   from   a  judgment     enforcing   a  property    settlement 

agreement that had been earlier incorporated into a dissolution decree.               The appellant 

claims that the superior court failed to make findings required by statute, erred in failing 

to vacate ambiguous provisions of the agreement or to allow its modification, and erred 

in rejecting his defenses.     We affirm the superior court's judgment. 

----------------------- Page 2-----------------------


       A.     Facts 

              David J. McCarter, Jr. and Deborah A. McCarter (now known as Deborah 

A. Valdez) married in 1988 and filed for dissolution in February 2007. Their dissolution 

petition incorporated a property agreement ("the Agreement") that provided, among 

other things, that David would pay Deborah for her equity in a business, Dave McCarter 

Enterprises, Ltd., "in the amount of $2,000 per month for 320 months."  The Agreement 

further states, "Princip[al] amount is $300,000 at 5% interest due March 1, 2007 with 10 

(ten days) grace.   No penalty for early payoff of principal balance."     In April 2007 a 

superior court magistrate determined that David and Deborah understood the Agreement 

and were agreeing to it voluntarily, and the superior court thereupon issued a dissolution 

decree in which the Agreement was incorporated. 

              A few months later, in July 2007, David and Deborah entered into a new 

agreement entitled "General Release and Purchase Agreement between Deborah Valdez 

and Dave McCarter Enterprises, Ltd." ("the Release"). The Release purported to release 

David and the business "from all actions, claims, demands, or damages," to "cancel[] all 

previous contracts and agreements," and to "outright purchase[] the note of $300,000.00 

in the dissolution of marriage between [David and Deborah]."          In exchange for this 

general release, David was to pay Deborah $15,000 in cash, pay off the loan on her 

vehicle, extend the time by which Deborah was required to remove his name from the 

title of their marital residence, and pay Deborah $100 per month "until $39,000.00 is 

paid, no penalty for early payoff[.]"  A handwritten addition, apparently initialed by both 

parties, provided, "Failure to meet any terms or conditions above by Dave McCarter or 

Dave McCarter Enterprises LTD[.] results in return or reverts to original dissolution 


                                            -2-                                       6794

----------------------- Page 3-----------------------

        B.      Proceedings 

                1.     2008 motion for order to show cause 

                In June 2008 Deborah filed a motion for an order to show cause.                  Her 

motion did not mention the Release but alleged that David was about $8,000 in arrears 

on his monthly payments since the dissolution.            Deborah claimed that because David 

defaulted, he should "pay her the entirety of the money [the $300,000 due under the 

Agreement] in one payment."          David responded by relying on the Release, contending 

that he had made all the payments that it required "until March 2008 at which time the 

business failed and is currently filing bankruptcy"; he alleged   that he was filing for 

personal bankruptcy as well. His response also asserted that "the [b]usiness is valued far 

less than originally thought."  Deborah filed a reply in which she conceded the existence 

of the Release but asserted that David had not met its terms either, meaning that the 

Release's handwritten reverter clause had taken effect and returned the parties to the 

original Agreement. 

                David's     bankruptcy     triggered   an   automatic    stay  of  proceedings     on 

Deborah's motion. In August 2009 the superior court held, with Deborah's consent, that 

her motion was moot because she had presented the same issue to the bankruptcy court, 

where it was scheduled to be tried in an adversary proceeding. 

                2.     2010 motion for judgment 

                Deborah filed a motion for judgment in superior court in October 2010, 

asserting the same claim she had made in her 2008 motion for order to show cause and 

explaining that the bankruptcy action had been dismissed without prejudice.                   David 

failed to respond, and in November 2010 the superior court granted Deborah's motion. 

David   was   then   allowed   to   file   a   late   opposition   in   which   he   asserted   a   number   of 

defenses, and the court vacated its order granting Deborah's motion and scheduled an 

evidentiary hearing. 

                                                 -3-                                           6794

----------------------- Page 4-----------------------

                The superior court heard evidence and argument over three days in July 

2011 and issued a written decision in November.   The court rejected David's argument 

that he was entitled to relief from the Agreement pursuant to Alaska Civil Rule 60(b), on 

grounds that he had waived such relief, and it determined that the interpretation and 

enforcement of the parties' obligations were governed by contract law instead. The court 

held that the Release's reverter clause took effect when David missed the payments that 

the Release required, and that the Agreement therefore controlled.   The court found that 

the Agreement was ambiguous in that the monthly payment schedule ($2,000 per month 

for 320 months) did not match the stated principal and interest ($300,000 at five percent). 

Resolving the ambiguity, the superior court found that the parties' inclusion of a 320- 

month payment schedule was a mistake due to the haste with which they drafted the 

terms, and that what they intended was that David pay Deborah $300,000 in monthly 

payments of $2,000 at five percent annual interest until paid in full; the total amount due 

to Deborah was thus $471,869.47.          The court rejected what it termed David's "unclean 

hands"   defense,   i.e.,   that   he   should   be   excused   from   performance   on   grounds   that 

Deborah's actions in filing suit against him had caused his bankruptcy; the court found 

that there was no causal connection between Deborah's conduct and David's financial 

problems.   Lastly, the court held that the Agreement did not allow for acceleration of the 

principal and that Deborah was entitled to judgment only for the amounts past due. 

                David filed a motion for reconsideration, which was denied.               David now 


                                                  -4-                                            6794

----------------------- Page 5-----------------------


                We review for abuse of discretion the superior court's enforcement of a 

property settlement agreement incorporated in a dissolution decree.1  Abuse of discretion 

exists when a decision is "arbitrary, capricious, manifestly unreasonable, or . . . stem[s] 

from an improper motive."2         The superior court, not this Court, has the duty to assess 

credibility and weigh conflicting evidence.3           We review its factual findings for clear 



                We review questions of law de novo.5          We decide de novo "whether relief 

requested by a former spouse constitutes enforcement or modification of a property 

settlement agreement."6 


        A.	     The Superior Court Did Not Abuse Its Discretion In Granting The 

                Motion For Judgment. 

                David   contends   that   the   superior   court,   in   granting   Deborah's   motion, 

abused   its   discretion   in   two   respects:  first   by   failing   to   make   findings   required   by 

AS    25.24.230,     and  second    because,    after  finding   ambiguity    in  the  Agreement,      it 

        1       Morris v. Horn , 219 P.3d 198, 203 (Alaska 2009) (citing Horchover v. 

Field , 964 P.2d 1278, 1281 (Alaska 1998)). 

        2       Id. at 203-04 (quoting Collins v. Arctic Builders, 957 P.2d 980, 981 (Alaska 

1998)) (internal quotation marks omitted). 

        3	      Knutson v. Knutson , 973 P.2d 596, 599-600 (Alaska 1999). 

        4       Id . at 599. 

        5       Morris , 219 P.3d at 204 (citing Hopper v. Hopper , 171 P.3d 124, 128-29 

(Alaska 2007)). 

        6       Id. at 203 (quoting Krushensky v. Farinas , 189 P.3d 1056, 1060 (Alaska 

2008)) (internal quotation marks omitted). 

                                                  -5-	                                           6794

----------------------- Page 6-----------------------

interpreted the ambiguous provisions rather than vacating them.                 We find no abuse of 


                1.	     Alaska Statute 25.24.230 does not govern Deborah's motion for 


                Alaska Statute 25.24.230 requires a trial court to make factual findings 

about the fairness of any agreements that the parties seek to incorporate into their final 

decree of dissolution.       David relies on these statutory requirements to assert that the 

superior court, when considering Deborah's motion to enforce judgment, should have 

made factual findings as to whether the former spouses "underst[ood] fully the nature 

and    consequences      of  their  action,"   whether     the  Agreement      "fairly  allocate[d]   the 

economic effect of dissolution," and whether the Agreement was "free from coercion."7 

                David made this statutory   argument for the first time in his motion for 

                                                   8                                  9 

reconsideration, and it is therefore waived.         We review it for plain error  and find none. 

The statute's requirement that the court make factual findings is limited to the grant of 

a final decree of dissolution and "other relief as provided in this section";   it is irrelevant 

to subsequent enforcement of the decree.10            We have repeatedly held that the superior 

        7	      See AS 25.24.230(a)(1), (3), and (4); AS 25.24.230(b)(1), (3), and (4). 

        8       See   Clemensen   v.   Providence   Alaska   Med.   Ctr.,   203   P.3d   1148,   1155 

(Alaska 2009) ("[W]e will not consider an issue raised for the first time in a motion for 


        9       See Fernandes v. Portwine, 56 P.3d 1, 9 n.27 (Alaska 2002) ("[W]aiver will 

not be found where an issue raises plain error." (citing Hoffman Constr. Co. of Alaska 

v. U.S. Fabrication & Erection Inc., 32 P.3d 346, 355 n.29 (Alaska 2001))).  An obvious 

mistake creating a high likelihood of injustice constitutes plain error.  Paula E. v. State, 

Dep't of Health & Soc. Servs., Office of Children's Servs. , 276 P.3d 422, 436 (Alaska 

2012) (quoting Duffus v. Duffus , 72 P.3d 313, 319 (Alaska 2003)). 

        10      See AS 25.24.230(a) (emphasis added). 

                                                   -6-	                                            6794

----------------------- Page 7-----------------------

court   does   not   have   statutory    authority   to  modify    terms   of   incorporated    property 

agreements.11  "The provisions of a decree adjudicating property rights, unlike provisions 

for child support, child custody or alimony, constitute a final judgment not subject to 

modification."12      "[I]f a party to a property settlement seeks relief from a dissolution 

decree into which the settlement is incorporated, the party must request relief under Rule 

60(b)."13    Absent   such   relief,   an   agreement   that   has   been   incorporated   into   a   final 

dissolution decree is a contract and will be interpreted pursuant to ordinary principles of 

contract law.14    In short, the factual findings required by AS 25.24.230, while necessary 

to the issuance of the final decree, are irrelevant to its enforcement in a subsequent 


                David also relies on AS 25.24.230(e), which requires a court to "deny the 

relief sought in a petition filed under AS 25.24.200 - 25.24.260 if the court does not 

make the findings required under (a) - (c) of this section."  Again we find no plain error, 

because Deborah did not seek relief in a petition filed under the dissolution statutes; she 

sought to enforce a final judgment. 

        11      See, e.g., Morris v. Horn , 219 P.3d 198, 204 (Alaska 2009); Burrell v. 

Burrell , 696 P.2d 157, 164 (Alaska 1984). 

        12      Keffer v. Keffer , 852 P.2d 394, 396 (Alaska 1993) (quoting Allen v. Allen, 

645 P.2d 774, 776 (Alaska 1982)) (internal quotation marks omitted). 

        13      Morris , 219 P.3d at 204; see also Burrell, 696 P.2d at 164 (holding that 

" 'the provisions of a decree adjudicating property rights are modifiable only to the 

extent that relief may be obtained from any other final judgment' " (quoting Allen , 645 

P.2d at 776)).    Rule 60(b) provides that "the court may relieve a party . . . from a final 

judgment" for a variety of reasons such as, but not limited to, mistake, excusable neglect, 

newly discovered evidence, fraud, and discharge.              Alaska R. Civ. P. 60(b). 

        14      Knutson v. Knutson , 973 P.2d 596, 600 (Alaska 1999). 

                                                   -7-                                             6794

----------------------- Page 8-----------------------

        2.       The superior court was not required to vacate ambiguous provisions. 

                 David argues that the superior court erred in failing to vacate the portions 

of the agreement that it found to be ambiguous.  He also contends that the superior court 

in   effect  amended      the  parties'   agreement   in    violation    of   AS  25.24.220(g),   which 

addresses hearings on petitions for dissolution and allows the court to amend the parties' 

written agreements "only if both petitioners concur in the amendment in writing or on 

the record."     The cited statute, governing the proceedings during which a dissolution 

decree is issued, is irrelevant to Deborah's motion for the reasons given above.  And in 

any event, the superior court did not amend the Agreement; it simply interpreted it under 

contract principles, as was required under our case law.15 

                 As with any contract, the goal in interpreting a financial agreement "is to 

give effect to the reasonable expectations of the parties."16              This means that the court 

must attempt to resolve ambiguities.17         In doing so it should examine the language of the 

disputed   provisions,   "relevant   extrinsic   evidence,   and   case   law   interpreting   similar 

provisions."18    This process, properly applied, leads a court not to the amendment of the 

parties' agreement but to the implementation of the agreement that they intended all 


                 The    superior    court   found    the  provision     on  David's     payments     to  be 

ambiguous because it was open to several reasonable interpretations: whether the parties 

        15      Id . 

        16      Keffer , 852 P.2d at 397. 

        17      Hartley v. Hartley , 205 P.3d 342, 346 (Alaska 2009) (quoting Zito v. Zito, 

969 P.2d 1144, 1147 n.4 (Alaska 1998)). 

        18      Knutson ,   973   P.2d   at   600   (quoting  Keffer ,   852   P.2d   at   397)   (internal 

quotation marks omitted). 

                                                    -8-                                              6794

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intended monthly payments of $2,000 for 320 months (regardless of the total sum paid); 

monthly payments of $2,000 until the principal amount of $300,000 plus five percent 

interest had been paid (regardless of the number of months this required); or monthly 

payments of $1,699.13, which over 320 months would equal $300,000 plus five percent 

interest.  As required, the superior court determined the parties' expectations by looking 

to case law, relevant provisions in the agreement, and the parties' negotiations.  The 

superior court rejected as not credible David's contention that the 320-month period was 

intended to give him 80 months of grace, i.e., 80 months when he was entitled to skip 

payments entirely. The superior court found credible Deborah's testimony that the 320- 

month period was the result of hasty drafting, that the parties' negotiations focused 

instead on the amount of the monthly payment, and that they agreed on $2,000 because 

it was what she needed to meet her monthly expenses. 

                The superior court was correct, as a matter of law, in its decision to apply 

principles of contract law to its interpretation of the Agreement.                 The record amply 

supports the superior   court's   finding of ambiguity, and we find no clear error in its 

findings   on   the   parties'   reasonable   expectations.     We   see   no   reason   to   disturb   the 

superior court's resolution of these issues.19 

        B.	     The Superior Court Did Not Err In Refusing To Modify The 

                Dissolution Agreement. 

                1.	     David was not statutorily entitled to modification. 

                In   another   argument   based   on   the   dissolution   statutes,   David   relies   on 

AS   25.24.240(b),   which   provides   that   a   decree   of   dissolution   "may   be   modified   or 

enlarged   as   prescribed   by   AS   25.24.150   -   25.24.170."     David   directs   us   in   turn   to 

AS 25.24.160(a)(4), which he contends gives grounds for modification when a party 

        19      Neither party appeals the superior court's calculation of the amount entered 

in the final judgment, and we do not consider the issue. 

                                                   -9-	                                              6794 

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

breaches a property agreement.           David contends that the superior court erred when it 

failed to consider the statute's list of factors 20 and to allow him to modify the Agreement 

in response to Deborah's motion to enforce it.              But we have squarely addressed and 

rejected the argument that section 160(a) applies in circumstances like these: 

                         Alaska     Statute   25.24.160(a)     provides    the  statutory 

                authority for a court to adjudicate property rights.  However, 

                AS   25.24.160(a)   does   not   authorize   a   court   to   dispose   of 

                assets    on   a  piecemeal    basis   where,    as  here,  the   parties' 

                property      rights   have   been    purportedly     adjudicated     and 

                incorporated into a final judgment.           As this is not an initial 

        20      Those factors are: 

                (A) the length of the marriage and station in life of the parties 

                during the marriage; 

                (B) the age and health of the parties; 

                (C)   the    earning    capacity   of   the  parties,   including    their 

                educational backgrounds, training, employment skills, work 

                experiences,   length   of   absence   from   the   job   market,   and 

                custodial responsibilities for children during the marriage; 

                (D)   the   financial    condition    of  the  parties,   including    the 

                availability and cost of health insurance; 

                (E) the conduct of the parties, including whether there has 

                been unreasonable depletion of marital assets; 

                (F) the desirability of awarding the family home, or the right 

                to live in it for a reasonable period of time, to the party who 

                has primary physical custody of children; 

                (G) the circumstances and necessities of each party; 

                (H) the time   and   manner of acquisition of the property in 

                question; and 

                (I) the income-producing capacity of the property and the 

                value of the property at the time of division. 

AS 25.24.160(a)(4)(A)-(I). 

                                                   -10-                                             6794

----------------------- Page 11-----------------------

                 adjudication   of   the   parties'   property   rights,   relief   may   be 

                 granted only within the parameters of Civil Rule 60(b).[21] 

Again, in the absence of a Rule 60(b) motion for relief from judgment, the superior 

court's task was to interpret and enforce the Agreement by reference to principles of 

contract law, which it did. 

                 2.	     The   superior   court   did   not   clearly   err   in   finding   that   David 

                         waived any right to relief under Rule 60(b). 

                 David      argues    that   his   reliance    below     on   the   statutory    factors   in 

AS 25.24.160(a) was the substantial equivalent of a motion for relief from judgment 

under Rule 60(b)(6), and he apparently contends (though his argument is not entirely 

clear) that the court erred in failing to grant him relief under Rule 60(b)(6) based on the 

"technicality" that David had not sought such relief. 

                 David never filed a Rule 60(b) motion to set aside the Agreement.                   When 

the superior court first granted Deborah's motion for judgment as unopposed, David 

cited Rule 60(b)(1), (3), and (6) in support of his request to stay the order.  The request 

to stay was mooted by the court's decision to allow David to file a tardy opposition to 

Deborah's motion.          His opposition relied on bankruptcy law   and on the   dissolution 

statutes to support his argument that he was entitled to modify the Agreement.  At trial, 

the superior court advised David's counsel that if he was "arguing that the entire property 

settlement should be set aside and the marital estate reconfigured and rebalanced, . . . you 

need to file a Rule 60(b) motion and I need to know what section of Rule 60(b) you're 

relying   on."     An   extensive   discussion   followed,   in   which   the   judge   several   times 

reiterated   his   understanding   that   the   parties   were   seeking   not   a   modification   of   the 

Agreement   under   Rule   60(b)   but   rather   a   finding   of   whether   the   contract   had   been 

breached, using "contract interpretation principles and the reasonable expectation of the 

        21       Lowe v. Lowe , 817 P.2d 453, 456 (Alaska 1991). 

                                                    -11-                                                 6794 

----------------------- Page 12-----------------------

parties at the time they entered into the contract and extrinsic evidence thereof." David's 

counsel repeatedly agreed with this analysis. 

               Apparently having second thoughts, David's counsel submitted a letter after 

the first day of trial pursuant to Alaska Civil Rule 77(l) citing to supplemental authority, 

including provisions of the dissolution statutes and cases granting relief from dissolution 

decrees under Rule 60(b)(6).       David still did not bring a Rule 60(b) motion, however, 

and Rule 77(l) is not a substitute for substantive briefing or motion practice.22  In closing 

arguments   counsel   for   both   parties   addressed   Rule   60(b),   with   Deborah's   counsel 

presenting various reasons why David had no valid claim for modification under the 

Rule and David's counsel for the first time contending expressly that David was entitled 

to relief under Rule 60(b)(6). 

               Based on this history, however, the superior court found in its written order 

that "[t]o the extent that David seeks Rule 60(b) relief from judgment, he has waived it 

in this motion practice."  It concluded that it would be unfair to allow David to raise Rule 

60(b) "mid-hearing" given his reliance, up to that point, on only the dissolution statutes 

as the basis for modification. 

               We review the superior court's factual finding that waiver has occurred 

under the "clearly erroneous"  standard.23        The superior court's finding of waiver was 

firmly grounded in the procedural history of the case and was not clearly erroneous. 

        22     See Alaska R. Civ. P. 77(l) (providing that "the letter may not contain 

argument or explanations"); cf. Wing v. GEICO Ins. Co., 17 P.3d 783, 788-89 (Alaska 

2001) (holding that it was error for court to accept affidavit purportedly submitted as 

supplemental   authority      under   Civil   Rule  77(l),  since  the  Rule  "only   provides    for 

submission of citations to legal authorities that come to the attention of a party after that 

party's memorandum has been filed"). 

        23     Sengul v. CMS Franklin, Inc., 265 P.3d 320, 324 (Alaska 2011) (citing 

Miscovich v. Tryck , 875 P.2d 1293, 1302 (Alaska 1994)). 

                                                -12-                                            6794 

----------------------- Page 13-----------------------

                3.	     The     superior    court    did   not   allow    Deborah      to  modify the 


                David contends that he was treated unfairly because the superior court, 

while denying him Rule 60(b) relief, "effectively granted [Deborah] Rule 60(b)(6) relief 

by   excusing   her   from   her   obligations   under   the   [d]ecree   to   transfer   real   estate   and 

refinance debts."  We find no merit to this argument. The parties presented no arguments 

about Deborah's reciprocal obligations under the Agreement and the superior court did 

not rule on them. 

        C.	     The   Superior   Court   Did   Not   Err   In   Rejecting   David's   Frustration 


                1.	     The court did not err in deciding the defense as depending on 

                        proof     of  wrongdoing      by   Deborah,     since   that   is  how   David 

                        presented it. 

                One of David's primary defenses to payment under the Agreement was that 

his   financial   difficulties   were   caused   in   large   part   by   Deborah's   own   conduct.  He 

contended that she "killed the golden goose" by filing the 2008 motion for order to show 

cause and demanding acceleration of the principal due, because this conduct made it 

impossible for him to get the credit necessary to keep his business afloat.  The superior 

court labeled this an "unclean hands" defense and rejected it on the facts, finding that 

Deborah had committed no wrongdoing because David's decision to file bankruptcy was 

unrelated to any conduct of Deborah's.24          The court noted (1) that David's last payment 

to Deborah was in April 2008, several months before she filed her motion for order to 

show cause; (2) that David later attested in an affidavit that he had been unable to make 

payments because of an economic downturn; and (3) that in July 2008, in opposing 

Deborah's motion for order to show cause, David asserted that his business had failed 

        24      The first element required of an unclean hands defense is that the other 

party have "perpetrated some wrongdoing."  Cook v. Cook, 249 P.3d 1070, 1082 (Alaska 

2011) (quoting Knaebel v. Heiner , 663 P.2d 551, 554 (Alaska 1983)). 

                                                  -13-	                                             6794 

----------------------- Page 14-----------------------

in March 2008, prompting his bankruptcy.              Given this sequence of events and the fact 

that "the sole evidence supporting David's claim is his testimony," which the court found 

"lacking in credibility," the court found that David was "not excused from performance 

of his dissolution agreement under the doctrine of unclean hands." 

                On appeal David frames this defense as one more properly characterized 

as "frustration of purpose," a defense   available under contract law and one that the 

superior court should not have limited by the requirement that David also prove unclean 

hands.      David   argues   that   when   his   business   failed,   "the   fundamental,   underlying 

assumption of the dissolution agreement [was] destroyed," citing Schofield v. Schofield25 

and Juelfs v. Gough.26      But both of those cases were decided on Rule 60(b), not contract 

law, grounds. And the superior court decided the issue in this case as David consistently 

framed   it   below:    as   one   that   hinged   on   proof   of   wrongdoing   on   Deborah's   part.27 

Though   relying   on   the   dissolution   statutes   (which   are   not   controlling,   as   explained 

above),   David   argued   in   his   opposition   to   Deborah's   motion   for   judgment   that,   by 

        25      777 P.2d 197, 200-02 (Alaska 1989) (affirming superior court's grant of 

Rule 60(b) relief where underlying assumption of dissolution decree awarding marital 

residence to husband was that he would care for the children, and custody later changed 

to wife). 

        26      41 P.3d 593, 597 (Alaska 2002) (affirming superior court's grant of Rule 

60(b) relief where underlying assumption of dissolution decree was that couple would 

be able to cooperate in sharing custody of the dog, but proved unable to do so). 

        27      Frustration of purpose is a defense that does not involve fault by either 

party.  See, e.g., Gold Dust Mines, Inc. v. Little Squaw Gold Min. Co., 299 P.3d 148, 160 

(Alaska 2012) ("Under this defense, performance is excused if, without fault of either 

party, an implied condition of the contract is not met." (citing Merl F. Thomas Sons, Inc. 

v. State, 396   P.2d   76, 78 (Alaska 1964))).          By contrast, the unclean hands doctrine 

requires wrongdoing.        See, e.g., Knaebel v. Heiner, 663 P.2d 551, 554 (Alaska 1983) 

(explaining that the defense requires proof that the party "perpetrated some wrongdoing" 

and   "that   the   wrongful   act   related   to   the   action   being   litigated"   (citing ZECHARIAH 


                                                   -14-                                               6794 

----------------------- Page 15-----------------------

analogy, "[i]f this were a business dispute between partners under ordinary principles of 

contract law, [Deborah's] efforts to drive [David] and Dave McCarter Enterprises into 

bankruptcy would operate as an affirmative defense known as 'frustration of purpose.' " 

David's attorney made a few vague references to a "frustration" defense at trial, but he 

asserted consistently that it was based on Deborah's wrongdoing. 

                 The court thus decided the issue as David had presented it, as one requiring 

a determination of whether Deborah had committed any wrongdoing and, if so, whether 

it   was   her   wrongdoing   that   caused   the   business   to   fail. A   "frustration   of   purpose" 

argument that is independent of Deborah's alleged wrongdoing was not asserted below 

and is therefore waived.28 

                 2.      The superior court's findings are not clearly erroneous. 

                 Finally, David contends that in analyzing his "frustration of purpose" and 

"unclean   hands"   defenses,   the   superior   court   failed   to   consider   his   testimony   that 

Deborah had violated the Agreement herself in 2007 by failing to timely sign over title 

to a parcel of real estate which David could have leveraged for cash and by failing to 

transfer   some   debts   out   of   David's   name,   which   would   have   improved   his   credit.29 

David   argues   that   these   failures   "caused   him   to   file   for   bankruptcy."   But   David's 

testimony does not make that causal link, and the superior court was not obliged to infer 

it.  The record contains no other evidence to corroborate David's claim that this conduct 

on Deborah's part contributed to his financial downfall.                 The superior court is given 

        28      See State v. O'Neill Investigations, Inc., 609 P.2d 520, 528 ("Failure to 

argue a point constitutes abandonment of it." (citing Lewis v. State , 469 P.2d 689, 691-92 

n.2 (Alaska 1970))). 

        29       Deborah testified that she signed the deed as soon as she was asked. 

                                                   -15-                                                6794 

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particular deference for factual findings based on oral testimony,30  and even absent that 

deferential standard, we find no clear error here. 


              We AFFIRM the judgment of the superior court. 

       30     See, e.g., Ebertz v. Ebertz , 113 P.3d 643, 646 (Alaska 2005) (quoting In re 

Adoption of A.F.M. , 15 P.3d 258, 262 (Alaska 2001)). 

                                            -16-                                       6794 

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