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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Blaufuss v. Ball (7/12/2013) sp-6796

Blaufuss v. Ball (7/12/2013) sp-6796

        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  


ANDREA BLAUFUSS,                                    ) 

                                                    )    Supreme Court No. S-14484 

                        Appellant,                  ) 

                                                    )    Superior Court No. 3KO-06-00285 CI 

        v.	                                         ) 

                                                    )    O P I N I O N 

MELVIN BALL,                                        ) 

                                                    )   No. 6796 - July 12, 2013 

                        Appellee.	                  )


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

                Judicial District, Kodiak, Steve W. Cole, Judge. 

                Appearances:          Andrea       Blaufuss,     pro    se,   Bellevue, 

                Washington, Appellant.         Jรผrgen Jensen, The Law Office of 

                Jรผrgen Jensen, Anchorage, for Appellee. 

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

                Justices.   [Bolger, Justice, not participating.] 

                WINFREE, Justice. 


                After   a   trial   the   superior   court   granted   a   decree   of   divorce,   distributed 

marital   debts   and   property,   and   ordered   the   husband   to   pay   spousal   support   for   an 

indefinite time period.      More than three years later - in front of a different superior 

court judge - the wife sought relief for the husband's failure to pay any spousal support. 

The   husband   in   turn   filed   a   motion   to   set   aside   the   original   spousal   support   award, 

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arguing the judgment was void:   (1) for lack of personal and subject matter jurisdiction 

at   the   trial;   and   (2)   because   he   had   not   received   due   process   during   the   trial.  The 

superior court granted the husband's motion, declaring the spousal support judgment 

void   because   the   husband   had   not   received   due   process   during   the   trial.   The   wife 

appeals; we reverse. 


                 Melvin   Ball   and   Andrea   Blaufuss   (f/k/a   Andrea   Ball)   were   married   in 

Washington in 1980.  Ball left Blaufuss and moved to Alaska in 2002, but he continued 

to support Blaufuss and their minor child until 2006.                In October 2006 Ball filed for 

divorce in Alaska.       The trial court issued a domestic relations pretrial order listing the 

documentation requirements for spousal support motions - the order explained that 

"[a]ll motions and oppositions involving spousal support must be accompanied by a 

financial declaration affidavit."       This order was served on Blaufuss. 

                 Blaufuss did not timely respond to the divorce complaint, and in March 

2007 Ball filed a default application. In April Blaufuss's sister, Kathie Price, emailed the 

superior court a response explaining that Blaufuss:   (1) suffered from mental illness and 

her   condition   had   been   deteriorating;   (2)   was   classified   as   categorically   needy   by 

Washington state; (3) was dependent on Ball as her sole source of income; (4) was in 

arrears for six months on her mobile home lot space fees; (5) owed more than $4,000 in 

property taxes on her mobile home; (6) had no money to pay her electric bill; (7) had a 

broken furnace and had been heating her home using the oven; and (8) had moved in 

with   Price.    Price   requested   spousal   support   for   Blaufuss.      Blaufuss   signed   a   note 

authorizing Price's response. 

                 The   trial   court   accepted   the   email   as   Blaufuss's   answer,   denied   Ball's 

default request, and scheduled a trial-setting conference.   After that conference the court 

issued an order explaining that divorce, spousal support, and property and debt would 

                                                    -2-                                              6796

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be addressed at trial.  Trial took place in June 2007.  Ball, Blaufuss, and Price appeared 


                 Ball testified that he sent Blaufuss money after he moved to Alaska in 2002, 

but stopped supporting her in November 2006 because he "found out about her use of 

cocaine   and   spending   the   money   on   .   .   .   drugs   and   [that]   she   also   was   .   .   .   being 

unfaithful."  Ball testified that he had earned approximately $94,000 a year, but that his 

income   recently   had   dropped   to   approximately   $54,000   a   year.        When   asked   about 

Blaufuss's assertion that she "suffers from mental illness, severe depression and anxiety 

disorders and is not able to care for herself," Ball testified that Blaufuss was 

                 fine as long as she doesn't take a lot of drugs.  She had a job, 

                 she   was    holding    a  job  until   she  started   using    narcotics, 

                 painkillers,   and   mixing   them   with   antidepressants.       She'd 

                 been through rehab, been through a program to get cleaned 

                 up a couple of times, and she finally ended up resorting to 

                 illegal street drugs. . . . I know that she can - she would be 

                 able to hold a job. 

Ball   also   asserted    that  between     2002    and   2006   he   had   provided     for  Blaufuss    by 

depositing more than $20,000 into Price's bank account, but that he did not want to pay 

further spousal support because he did not "feel that [he] should have to take care of her 

because of her problems that . . . obviously she's born with." 

                 After    Ball   testified,  the  court   requested     Blaufuss's     testimony.     Price 

responded, explaining that she did not know if her sister was in an emotional condition 

to testify and offered to "answer any questions that [the court] would have."                   The court 

voir dired Price and then Blaufuss. 

                 Price testified that Blaufuss and Ball owed property taxes and space fees 

on   their mobile home and that they had incurred a $1,700 cellular telephone debt in 

Price's    name.     Price    explained     that   Blaufuss   "suffers   from    mental   illness,   severe 

depression and anxiety disorders."           When the court asked if Blaufuss's mental illness 

                                                    -3-                                               6796

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was documented, Price responded "I have numerous pieces of documentation," but none 

were produced at trial.  Price testified that ten years earlier Blaufuss had worked for less 

than a year but had not been emotionally stable enough to continue working.                        Price 

further   explained   that   Blaufuss   lived   with   her   and   that   she   administered   Blaufuss's 

medication and kept drugs and alcohol out of the home.  Finally, Price testified about her 

expenses incurred in caring for Blaufuss and the amount of state assistance Blaufuss 


                The court again requested Blaufuss's testimony.  Blaufuss   stated that she 

agreed with her sister's testimony.         Blaufuss added that she had not used cocaine for 

almost a year. 

                Later that month the trial court issued findings and a decree of divorce.  The 

court found that Blaufuss suffered from mental illness and had chronic substance abuse 

problems, was unemployable, and needed supervision and assistance. The court awarded 

Blaufuss $1,000 monthly, indefinitely, for spousal support.  The trial court also awarded 

Blaufuss the mobile home and the property tax liability, and ordered Ball to pay unpaid 

mobile home space fees and $1,700 to Price for the cellular telephone debt. 

                In January 2010, having received no spousal support payments, Blaufuss 

moved to find Ball in contempt. On November 14, 2010, Superior Court Judge Steve W. 

Cole, who had not been the divorce trial judge, scheduled a December 2010 hearing. 

The hearing was continued, and on December 30 Ball filed an Alaska Civil Rule 60(b)(4) 

motion1 alleging that at the time of the original divorce the superior court:                 (1) lacked 

personal jurisdiction over Blaufuss because she was not an Alaska resident; (2) did not 

        1       Alaska R. Civ. P. 60(b)(4) provides:   "On motion and upon such terms as 

are just, the court may relieve a party . . . from a final judgment, order, or proceeding [if] 

. . . the judgment is void." 

                                                   -4-                                               6796 

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have subject matter jurisdiction over property outside of Alaska to address the mobile 

home debt; and (3) did not have jurisdiction to address Price's $1,700 claim because 

Price "never submitted herself to the personal jurisdiction of the court." Ball also alleged 

that he had not received due process during the divorce trial because:                        (1) the court 

ordered spousal support with no financial documentation and relied on hearsay testimony 

from Price; (2) Blaufuss provided no evidence supporting her allegations; (3) the court 

required   no   documentation   supporting   Blaufuss's   medical   claims; and   (4)   the   court 

ignored Ball's testimony even though Blaufuss's testimony was inconsistent. 

                 Blaufuss      responded,      arguing    that:   (1)   the  court    had   subject    matter 

jurisdiction   under   AS   25.24.010; 2   (2)   Ball   subjected   himself   to   the   court's   personal 

jurisdiction     by   filing   his  original    divorce    complaint;     (3)   the  court    had   personal 

jurisdiction   over   Blaufuss   after   she   voluntarily   participated   in   the   divorce   trial   and 

waived lack of personal jurisdiction as a defense; and (4) Ball was estopped from arguing 

the court lacked jurisdiction because he had invoked the court's jurisdicition.  Blaufuss 

also    argued    that   Ball  had    received    a  fair  hearing    and   due   process    because     Ball: 

(1) instituted the action and had notice of the trial; (2) had been notified by Blaufuss's 

email answer to the divorce complaint and the court's scheduling order of the issues the 

court   planned   to   address   at   trial;   (3)   had   the   opportunity   to   be   heard,   and   actually 

testified at trial, about Blaufuss's mental illness and the couple's debts; and (4) did not 

appeal - the proper avenue for redress when disagreeing with a judgment. 

                 In August 2011 Judge Cole granted Ball's Rule 60(b)(4) motion in part, 

vacating the spousal support award. Judge Cole rejected Ball's jurisdictional arguments, 

explaining that at the time of the original divorce action the court had subject matter 

         2       AS   25.24.010   provides:        "A   husband   or   wife   may   maintain   an   action 

against the other for divorce or to have the marriage declared void." 

                                                     -5-                                                  6796 

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jurisdiction, Blaufuss had waived any personal jurisdiction claims, and Ball was estopped 

from arguing against jurisdiction four years after he had invoked the court's jurisdiction 

and received a judgment.        But Judge Cole agreed with Ball's due process argument as 

to spousal support. Judge Cole was concerned that there was no documentation or expert 

testimony regarding Blaufuss's mental health and ability to support herself, that there 

was no financial documentation despite a court order requiring disclosures,3  and that the 

original   decision    relied  on   Price's   hearsay  testimony.      He  determined     that  expert 

testimony and mental health documentation, financial documentation, and Blaufuss's 

own testimony would have had immense value because grants of permanent spousal 

support require "substantial evidence" that a spouse is not employable and may only be 

awarded when "just and necessary."          Finally, he concluded that while Ball received an 

opportunity to be heard and challenge evidence, "[d]ue process dictates that testimony 

beyond the lay testimony presented in these original proceedings [is available] before 

making      a  determination     of  Ms.   Blaufuss's    mental    state,  her  prospect    of  future 

employment and whether an award of alimony was just and necessary." 

                Blaufuss appeals pro se, arguing that the superior court erred by granting 

Ball's Rule 60(b)(4) motion and vacating the spousal support award. 


                We review the superior court's decision on a Rule 60(b)(4) motion de novo 

"because the validity of a judgment is strictly a question of law."4  When considering due 

        3       Judge Cole presumably was referring to the domestic relations pretrial order 

issued   at   the   beginning   of   the   case   requiring   financial   declarations   to  accompany 

spousal-support motions and oppositions.  Blaufuss apparently did not file a motion for 

interim spousal support, leaving the matter for trial.   It is not at all clear that an order for 

financial declarations in connection with spousal support was violated by either party. 

        4       Lesnoi, Inc. v. Merdes & Merdes, P.C. ,            P.3d     , 2013 WL 386373, at 


                                                  -6-                                           6796

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process questions we adopt "the rule of law that is most persuasive in light of precedent, 

reason, and policy."5 


                Alaska Statute 25.24.160 provides the superior court discretion to award 

spousal support after considering enumerated factors.6  Alaska Statute 25.24.170 clarifies 

that   spousal    support   awards    may    be  modified     at  any  time   after  final  judgment.7 

Generally,   modification   of   a   support   order   is   warranted   only   after   a   party   shows   a 

material and substantial change in circumstances.8             But Ball did not request a spousal 

        4       (...continued) 

*4 (Alaska, Feb. 1, 2013) (quoting Aguchak v. Montgomery Ward Co. , 520 P.2d 1352, 

1354 (Alaska 1974)). 

        5       In re Estate of Fields , 219 P.3d 995, 1003 (Alaska 2009) (quoting S.B. v. 

State, Dep't   of   Health & Soc. Servs., Div. of Family & Youth Servs., 61 P.3d 6, 10 

(Alaska 2002)). 

        6       AS 25.24.160 provides:         "In a judgment in an action for divorce . . . the 

court may provide . . . for the recovery by one party from the other of an amount of 

money   for   maintenance,   for   a   limited   or   indefinite   period   of   time,   .   .   .   an   award   of 

maintenance must fairly allocate the economic effect of divorce . . . ."               See Hanlon v. 

Hanlon , 871 P.2d 229, 232-33 (Alaska 1994) ("Permanent awards of spousal support are 

particularly   disfavored, 'because it is generally   undesirable to   require one person to 

support another on a long-term basis in the absence of an existing legal relationship.' " 

(quoting Jones v. Jones, 835 P.2d 1173, 1179 (Alaska 1992))). 

        7       AS   25.24.170   provides:      "any   time   after   judgment   the   court,   upon   the 

motion of either party, may set aside, alter, or modify so much of the judgment as may 

provide for alimony . . . or for the maintenance of either party to action." 

        8       Burrell v. Burrell , 696 P.2d 157, 161 (Alaska 1984).               We have not yet 

decided whether spousal support may be retroactively modified, but we recently noted 

that although not barred by statute in Alaska, retroactive modification is not allowed in 

the majority of states.     Wirtz v. Wirtz, Mem. Op. & J. No. 1360, 2010 WL 1135765, at 


                                                  -7-                                             6796

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support modification; rather, he relied on Rule 60(b)(4) and argued that the 2007 spousal 

support order was void. 

                "Rule 60(b)(4) permits relief from a void judgment if the issuing court 

lacked   subject   matter   jurisdiction   or   violated   due   process.  Void   judgments   may   be 

attacked at any time."9      But the rule "is not a substitute for a party failing to file a timely 

appeal;     nor   does   it  allow   relitigation   of  issues   that  have   been    resolved    by   the 

judgment." 10    Further, "[a] judgment is not void merely because it is erroneous." 11 

                Judge   Cole's decision to vacate the spousal support order relied on his 

determination that the divorce trial proceedings violated Ball's due process rights.  We 

have explained that "[t]he right to due process is violated if a party is deprived of 'the 

opportunity to be heard at a meaningful time and in a meaningful manner.' "12                       Due 

process "expresses a basic concept of justice."13             Determining the process due to an 

individual is a case-by-case inquiry based on the interest implicated - the interest being 

        8       (...continued) 

*14 n.48 (Alaska, Mar. 24, 2010). 

        9       Ray v. Ray , 115 P.3d 573, 577 (Alaska 2005) (citing State v. Maxwell, 6 

P.3d 733, 736 (Alaska 2000); Dewey v. Dewey , 969 P.2d 1154, 1159-60 (Alaska 1999)). 

        10       Cook   v.   Cook,   249   P.3d   1070,   1083   (Alaska   2011)   (quoting Morris   v. 

Morris , 908 P.2d 425, 429 (Alaska 1995)). 

        11       11   CHARLES  ALAN  WRIGHT   ET   AL ., FEDERAL  PRACTICE             & PROCEDURE 

ง 2862 (3d ed. 2012). 

        12      Heustess v. Kelley-Heustess , 259 P.3d 462, 477 (Alaska 2011) (quoting 

Matson v. State, Commercial Fisheries Entry Comm'n , 785 P.2d 1200, 1206 (Alaska 


        13      State,   Dep't   of   Natural   Res.   v.   Greenpeace,   Inc.,   96   P.3d   1056,   1063 

(Alaska 2004) (citing Green v. State, 462 P.2d 994, 996-97 (Alaska 1969)). 

                                                   -8-                                             6796

----------------------- Page 9-----------------------

deprived - by state action.14         The process due is not solely dependent on the deprived 

interest   but   rather   "depends   on   the   'appropriate   accommodation   of   the   competing 

interests involved.' "15 

                 Three distinct factors are balanced in our due process analysis: 

                 First, the private interest that will be affected by the official 

                 action; second, the risk of an erroneous deprivation of such 

                 interest through the procedures used, and the probable value, 

                 if any, of additional or substitute procedural safeguards; and 

                 finally,   the   Government's   interest,   including   the   function 

                 involved and the fiscal and administrative burdens that the 

                 additional     or   substitute    procedural      requirement      would 


                 Blaufuss contends that Judge Cole erred by granting the Rule 60(b)(4) 

motion   and   vacating   the   spousal   support   award   because   Ball   received   "a   fair   and 

adequate hearing."       She argues that Ball received a full evidentiary hearing and that he 

"was allowed to introduce evidence, give testimony and to cross-examine witnesses.  He 

was given advance notice of the issues to be decided."                   She asserts that Judge Cole 

erroneously "analyzed the quality of the presentations by Mr. Ball and Ms. Blaufuss at 

[the] hearing," instead of reviewing the adequacy of the notice and hearing Ball received. 

Blaufuss further asserts that Judge Cole's decision was based on alleged judicial error 

such as insufficient evidence, and that Ball failed to show any due process violation.  She 

argues that judicial error must be addressed on appeal and that a Rule 60(b) motion is not 

a substitute for an appeal. 

        14       See id. at 1065 (citing Fuentes v. Shevin , 407 U.S. 67, 92 n.22 (1972); 

Mathews v. Eldridge , 424 U.S. 319, 334-35 (1976)). 

        15       Borkowski v. Snowden , 665 P.2d 22, 27 (Alaska 1983) (quoting Logan v. 

Zimmerman Brush Co., 455 U.S. 422, 434 (1982)). 

        16      Id. at 27-28 (citing Mathews , 424 U.S. at 335). 

                                                    -9-                                              6796

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                Ball responds that his Rule 60(b)(4) motion was a proper avenue for relief 

because it challenged the sufficiency of process he received in 2007.  Ball contends that 

he had inadequate notice before the 2007 trial because there had been no discovery, no 

pretrial pleadings, no financial disclosures by either party despite a court order,17 and no 

pretrial disclosure of Blaufuss's arguments regarding her mental health diagnoses.  Ball 

also applies the three-part due process balancing analysis and argues that: (1) his interest 

is substantial; (2) the divorce trial court's decision to rely on lay testimony without 

financial   documentation   or   additional   evidence   of   Blaufuss's   alleged   mental   illness 

created a high risk of erroneous deprivation; and (3) the government's interest is limited 

because "[t]here would be no extra burden on the government to re-hear the issue of 

alimony."      Finally,   Ball   argues   that   his   due   process   rights   were  violated  because 

"findings [were] based on lay testimony by Mr. Ball and Ms. Price without notice of the 

evidence to be presented, any documentary evidence at trial or any reliable testimony 

from one party to the case." 

                We agree with Blaufuss.  There can be no dispute that Ball had notice that 

spousal support would be addressed at trial because:  (1) he received Price's 2007 email 

response that Blaufuss's mental state and indigence would be relied upon for an award 

of spousal support; and (2) the pretrial order explicitly included spousal support as an 

issue   for   trial. Ball   nonetheless   argues   that   he   received   inadequate   notice   because: 

(1) both parties ignored the trial court's order to file financial declaration affidavits;18 and 

(2) he was not informed of specific medical diagnoses that would be raised at trial.  Ball 

argues that the lack of this information deprived him of the right to adequately represent 

his interests at trial. 

        17      Cf. note 3, supra . 

        18      Cf. note 3, supra . 

                                                  -10-                                               6796 

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

                 But Ball does not assert that the trial court somehow prevented him from 

discovering the financial information or Blaufuss's medical diagnoses.  Ball's argument 

implies that a party who fails to prepare for trial, despite knowing the issues to be tried, 

somehow has inadequate notice for due process purposes.19  Despite knowing the spousal 

support issue would be resolved at the trial, Ball failed to conduct any discovery or to 

gather and present evidence on the issue beyond his own testimony (which tended to 

support Blaufuss's position). Ball now complains that his due process notice rights were 

violated in part because he did not have Blaufuss's financial or medical information for 

trial.  Ball provides no support for this expansive interpretation of the due process notice 

requirement.     Ball cites Aguchak v. Montgomery Ward Co. ,20  in which we decided due 

process   required   that the   defendants   in   that case   receive   notice   of their   right to   file 

written pleadings in response to civil complaints.21            Aguchak did not address notice of 

specific   issues   and   arguments   to   be   presented   at   trial   and   does   not   support   Ball's 

expansive due process interpretation. 

                 Ball also misapplies the three-part due process balancing test, repeating 

Judge Cole's analysis and arguing that:  (1) his interest in not paying spousal support is 

significant; (2) the trial court ran a high risk of erroneous deprivation; and (3) the state 

has a minimal interest here and additional safeguards would impose no burden.  But the 

        19       Cf.  VinZant   v.   Elam,   977   P.2d   84,   86-87   (Alaska   1999)   (deciding   due 

process requires notice of issues to be addressed and decided at trial); A.M. v. State , 945 

P.2d 296, 302 (Alaska 1997) ("Notice reasonably calculated to afford the parties an 

opportunity to present objections to a proceeding, and affording them a reasonable time 

do so, is a fundamental requirement of due process." (quoting Kerr v. Kerr , 779 P.2d 

341, 342 (Alaska 1989))). 

        20       520 P.2d 1352 (Alaska 1974). 

        21      Id. at 1357-58. 

                                                   -11-                                              6796

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purpose of the three-part due process analysis is to determine the sufficiency of the 

procedures provided when there is a deprivation of a protected interest.22              Judge Cole's 

conclusion that there was a high risk of erroneous deprivation was based entirely on the 

sufficiency   of   the   evidence   presented   to   the   trial   court,   not   the   sufficiency   of   the 

procedures provided before or during trial.          Judge Cole looked at the limited evidence 

Ball and Blaufuss presented to support their trial arguments and concluded that there had 

been insufficient evidence presented at trial to support a spousal support award.                  This 

conclusion does not implicate the process Ball received, but rather implicates alleged 

decisional error by the trial court.  And the correct procedure to remedy such an error is 

a direct appeal to this court. 

                Ball received notice and the opportunity to gather and present evidence at 

trial. The trial court did not prevent Ball from conducting discovery, testifying, cross- 

examining   other   witnesses,   or   presenting   his   own   expert   testimony.      Nor   did   Ball 

unsuccessfully   object   to   any   trial   procedures   the   trial   court   employed.   Ball   only 

belatedly challenged the evidence presented at trial and the final decision rendered by the 

trial court, essentially using his Rule 60(b)(4) motion as an original appeal.                 But his 

remedy after trial was a timely appeal to this court, and his Rule 60(b)(4) due process 

argument - an attempt for another bite at the apple after he failed to timely appeal - 

must be rejected. 


                We REVERSE and REMAND for further proceedings consistent with this 



(4th ed. 2011).  See Bigley v. Alaska Psychiatric Inst. , 208 P.3d 168, 181 (Alaska 2009) 

("Alaska has adopted the U.S. Supreme Court's three-part balancing test from Mathews 

v. Eldridge for determining the necessary extent of due process." (footnote omitted)). 

                                                  -12-                                              6796 

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