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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Fernandez v. Fernandez (11/22/2013) sp-6843

Fernandez v. Fernandez (11/22/2013) sp-6843

         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  

                                                                                       

         corrections@appellate.courts.state.ak.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



CYNTHIA L. FERNANDEZ,                                  )  

                                                       )         Supreme Court No. S-14679  

                  Appellant,                           )  

                                                       )         Superior Court No. 3AN-86-09323 CI  

         v.                                            )  

                                                       )         O P I N I O N  

DAVID M. FERNANDEZ,                                    )  

                                                       )        No. 6843 - November 22, 2013  

                  Appellee.                            )  

                                                       )  



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

                                                                

                   Judicial District, Anchorage, John Suddock, Judge.  



                  Appearances:   Cynthia   L.   Fernandez,   pro   se,   Chugiak,  

                                                          

                  Appellant.   David   M.   Fernandez,   pro   se,   Clam   Gulch,  

                                                                                  

                  Appellee.  



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

                                        

                  Bolger, Justices.  



                   STOWERS, Justice.  



I.       INTRODUCTION  



                   Cynthia  and  David  Fernandez  married  in  1979  and  had  two  children  



together. In 1986 the parties dissolved their marriage but continued to live together until  

                                                                          



1997, when David left their  home. David returned in 2001 and lived with Cynthia again  

                                                                                                      



until 2007, when the parties separated a second and final time.  


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

                                                                                               

                    In August 2010 David received a letter from the Child Support Services  



Division (CSSD) advising him that he was required to pay child support in the amount  



of $450 per month, based on a support order dating from November 1986, when the  



            

parties dissolved their marriage.  In September 2010 David filed a motion in the superior  



          

court  requesting "judicial relief from the actions of [CSSD] from seizure of funds."  



                                                                                  

Cynthia opposed the motion.  In May 2011 the parties attended a settlement conference  



                                                                                                          

conducted by Superior Court Judge John Suddock, in which the parties sought to resolve  



                                                                                                                  

the child support issue as well as several property division issues.   They reached an  



                                                                      

agreement for Cynthia to pay David $33,000, based on the amount of equity David had  



contributed to Cynthia's home when they lived together.  The parties agreed that Cynthia  



                                              

would attempt to get a second mortgage to fund the settlement.  They also agreed that if  



Cynthia were unable to obtain the full $33,000 from a second mortgage, the parties  



                                                                               

would "start negotiating on terms in good faith" on a payment plan.  They agreed that  



                                                                                               

if they were unable to reach a deal after negotiations, then "all bets are off and they are  



back to square one."   



                                                                                               

                    Cynthia was not able to obtain a second mortgage and immediately sought  



                                               

to return to "square one."  The court ordered that she first negotiate terms with David in  



good faith.  After negotiations proved unsuccessful, the court set forth more detailed  



guidelines for the negotiations.  After further unsuccessful negotiations, the court set  



                    

terms for the settlement, requiring Cynthia to pay David $250 per month, plus her Alaska  



                                                   

Permanent Fund Dividend (PFD) each year, until the amount of $33,000 was paid in full.  



                                                                                                       

                    Cynthia appeals, arguing that the purported settlement agreement became  



                                                                                                   

a mere "agreement to negotiate" after she was unable to obtain a second mortgage and  



                                                                                                     

that the court lacked authority to set terms and enter a judgment of $33,000 against her.  



We agree and reverse.  



                                                               -2-                                                         6843
  


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

II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                    Cynthia and David Fernandez were married in March 1979.  They had two  

                                                                                                                     



children together, born in 1983 and 1985.  The parties dissolved their marriage in 1986.  

                                                                                



The dissolution petition provided for a financial allocation of assets and required David  

                                                                                       



to pay $300 per month in child support.  The court approved the terms of the parties'  



petition and granted a dissolution.  Despite the dissolution of their marriage, the parties  



remained together in the same household.  In 1987 a house on Thunderbird Drive in  



                     

Chugiak was purchased in Cynthia's name only, and both parties resided there.  In 1997  



                                                                      

the parties separated and David left the house.  David returned in 2001 and again lived  



                                                                                                   

with Cynthia at the Thunderbird Drive house.  In 2007 the parties separated for a final  



time; Cynthia remained in the Thunderbird Drive house, while David departed.  



          B.        Proceedings  



                                                                                                          

                    In August 2010 Cynthia filed an application for services with the Child  



                                                                                                                 

Support Services Division (CSSD) to update the amount of arrears owed  by David.  



                                                                            

CSSD sent David a letter advising him that he was required to pay child support in the  



                                                                                    

amount of $450 per month, based on the support order dating from November 1986,  



                                                               1  

when the parties dissolved their marriage.   In September 2010 David filed a pro se  



motion in the superior court seeking "judicial relief from the actions of [CSSD] from  



seizure of funds and garnishment of pay."  Cynthia filed a pro se opposition in October  

                                                                                                                



2010.  



                    The parties both retained counsel and attended a status hearing in January  

                                      



2011 before Superior Court Judge John Suddock.  Also present was a representative  

                                            



          1         This elevated figure accounted for David's principal and interest arrearages  



due to non-payment.  



                                                             -3-                                                           6843  


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

from CSSD, who stated that CSSD did not have a financial interest in the case and did  



not need to attend the hearing.  Following the hearing Judge Suddock issued an order  



staying CSSD's enforcement of the child support order, stating that CSSD shall cease  



action in the case "pending further order of the court."  



                                                                   

                    In February 2011 David filed a Motion to Amend Child Support Arrearage  



                                                                                            

and Equitably Divide Domestic Partnership Property. David argued that he did not owe  



                                        

back  child  support.    He  also  argued  that  the  parties  had  entered  into  a  domestic  



                                                        

partnership by living together after the dissolution and that the court should equally  



divide the equity in the assets acquired by the parties during the partnership, including  



                                              

the Thunderbird Drive house. Cynthia filed an opposition to David's motion, contending  



                                                                                                                  

that support was owed for both children from 1997 to 2003 in the amount of $25,650.  



With respect to the property division, Cynthia argued that after the dissolution the parties  



                   

had largely maintained separate finances and that when they separated in 2007 they  



                                                                                                  

divided all property; thus, there was "nothing more for the court to do" concerning the  



property.  



                                                                                           

                    In March 2011 the parties' attorneys attended a status hearing before Judge  



Suddock.    Both  attorneys  agreed  that  they  wanted  to  have  a  settlement  conference.  



Although  Judge  Suddock  suggested  several  other  judges  who  could  be  available  to  



                                                                                          

conduct the conference, David's attorney asked that Judge Suddock do so for the sake  



                                                                                                                         

of  convenience,  and  Judge  Suddock  agreed.                         Cynthia's  attorney  also  agreed  to  this  



arrangement.  



                                                                                                          

                    The settlement conference occurred  in  May  2011.   At the  close  of  the  



                                                               

conference the court stated that it would "recite what I believe your settlement is and  



then either lawyer can correct me or amend."  The court summarized the agreed-upon  



                                                                                            

settlement as an agreement "to negotiate for a cash payment from [Cynthia] to [David]  



                

based  on  the fact that there is quite a bit of equity now built up in the Thunderbird  



                                                               -4-                                                         6843
  


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

                                                                                                               

[Drive] house."  According to the court, the parties agreed that Cynthia would "go to the  



                      

bank and try to get a second mortgage to fund a settlement of $33,000," which David  



                                                                                         

would accept "in full and final settlement of all his rights arising out of this relationship."  



                 

However, the parties also recognized that Cynthia's creditworthiness might not allow her  



                                                                                     

to obtain a $33,000 second mortgage.  If Cynthia were not able to obtain the full $33,000  



                                                                                                         

from the bank "she [was] going to negotiate for the highest amount in good faith that she  



                                                              

[could] get."  The court stated that if Cynthia were able to obtain only $20,000, for  



                                 

example, then there would be a $13,000 deficiency.  "At that point the parties are going  



                                                                      

to start negotiating on terms in good faith."  The parties would discuss, for example, if  



there  is  "a  deal  to  be  made  where  [David]  takes  $20,000  plus  a  $13,000  note  for  a  



                                                                   

negotiated duration at a negotiated interest rate."  The court stated, "If they can make that  



deal at that time in light of the circumstances which I can't know at this moment, they  



                                                                                          

have a settlement; if they can't, all bets are off and they are back to square one."  The  



                                                                                                                             

court observed, "I think we all suspect that [Cynthia] may not be able to [get the full  



                                                         

$33,000] and there's going to have to be further discussions on terms at that point, and  



                                                                                         

you'll either work that out or you won't."  The court also stated that as part of the  



                                                                                                                

settlement "the parties determined that no child support is due and that would be part of  



                                                                     

the order to CSSD."  Following the court's recitation of the settlement agreement, both  



parties affirmed that they assented to the agreement and understood it was binding.  



                                                                                                                       

                     Several months later, in August 2011, Cynthia filed a motion stating that  



                                                                  

she had "made a good faith and timely  effort to obtain a home equity loan without  



                                                                   

success."  She argued that the "agreement . . . stated that if [Cynthia] cannot get funding,  



                                                                                                          

that there was no deal and negotiations have to start anew.  We are now at that point.  It  



is now time to start over."  



                     In September 2011 the court held a motion hearing.  After reviewing the  



                                                                                                                      

results  of  the  previous  settlement  conference,  the  court  stated,  "I  think  you  have  a  



                                                                  -5-                                                           6843
  


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

                                                                                                             

binding settlement, you have to negotiate in good faith on a payment plan, and you don't  



get to your do-over unless you can convince me there is no payment plan you can come  



                                                            

up with in good faith."  The court asked Cynthia if the parties had begun to negotiate in  



                                                                         

good faith, and she replied that they had not.  The court stated that the parties first would  



                                                         

have to negotiate in good faith  on  a  payment plan and, after that, would go back to  



"square one" only if they were unable to agree on a plan.  The court observed that  



                                                        

because at the time of the settlement conference Cynthia agreed to refinance her home  



                              

to  obtain  $33,000,  she  must  have  thought  she  could  absorb  an  increased  mortgage  



payment somewhere in the area of $300 to $400 per month; the court suggested that  



range of figures as a starting point for negotiations.  The court further stated that "[i]f I  



                                                                                                   

became convinced you hadn't negotiated in good faith, I think my next step would just  



be to impose terms on you."  



                                                                                                      

                    A   week   later   the   court   held   a   telephonic   status   hearing.      David  



                                                                                                       

acknowledged that following the previous hearing Cynthia had made several settlement  



offers.  However, he stated that Cynthia's offers were dependent on renegotiating the  



values of the assets and argued this was contrary to the initial agreement that had fixed  



                                

the amount Cynthia was to pay David.  Cynthia stated that she had made a good faith  



                                                                          

offer, but acknowledged the offer was based on a revaluation of some of the assets.  The  



court stated that there was nothing that precluded Cynthia from making a settlement offer  



based on any amount; however, Cynthia was required to negotiate in good faith the terms  



of the settlement contract, which is "an entirely different and more constrained matter."  



The court found that the principal amount Cynthia owed David had already been decided  



                            

($33,000) and the only variables were interest and the amount of the monthly payment.  



                                             

The court reiterated that the starting point of the negotiations should be the amount  



                                                         

Cynthia had envisioned paying each month if she had been able to obtain the second  



                                                              -6-                                                        6843
  


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

                2  

mortgage.   The court ordered the parties to conduct further negotiations according to  



                                                   

these guidelines and stated that if either of the parties failed to negotiate in good faith the  



                                                                                                       

court would impose a payment plan.  As the hearing drew to a close, Cynthia argued that  



                                                                                                      

according to the initial settlement she was entitled to a "do-over" if they could not agree  



                                                                                               

on  a  payment.    The  court  replied  that  if  Cynthia  wanted  to  overturn  the  settlement  



agreement  she  would  have  to  file  an  Alaska  Civil  Rule  60  motion  for  relief  from  



judgment.  



                    Following the hearing the court signed Findings of Fact and Conclusions  



of Law prepared by David.  The court found that "[t]he parties reached a settlement  



which  was  placed  on  the  record,"  according  to  which  Cynthia  was  to  keep  the  



                                                                                             

Thunderbird Drive house and pay David $33,000.  The court also found that the parties  



                                                                             

agreed "that there is no child support arrearage or any prospective child support owed"  



by David to Cynthia.  With respect to the terms of the $33,000 payment owed by Cynthia  



                                                                                                                     

to David, the court found that "[t]his matter remains unresolved at the date of this order,  



and will be resolved in the future."  



                                      

                    In October 2011 Cynthia filed a Rule 60(b) motion requesting that the court  



set aside the settlement.  She argued that:  (1) Judge Suddock should not have presided  



over the settlement conference because she had "a clear and strong perception of bias by  



virtue of the dual role that the court played in this proceeding"; (2) the agreement was  



       

not in compliance with the guidelines for maintenance set forth in AS 25.24.160; (3) the  



                                                             

child support judgment should not have been removed from the settlement equation; (4)  



          2  

                                                                                                                  

                    The court explained that if, for example, Cynthia were to offer only $75 per  

                                                                                        

month, the court would likely find that she had breached her obligation to negotiate in  

good faith; by contrast, the court would likely find an offer of $500 per month to be a  

good faith offer.  



                                                                -7-                                                            6843  


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

                                                                                           

lack of research regarding valuation adversely affected the negotiation at the settlement  



conference; and (5) there were errors in the court's findings of fact.  



                                                                          

                     In December 2011 the court held a hearing at which it denied Cynthia's  



                                                             

Rule 60(b) motion for relief, finding:   (1) in this jurisdiction, judges are permitted to  



                                                                                                        

conduct settlement conferences in their own cases, and in this case both parties agreed  



                                                                                   3  

                                                                                      (2)  the  court  did  not  believe  

the  court  would  conduct  the  settlement  conference; 



                                                                                                                         

Cynthia's claim that she had been intimidated at the settlement conference; and (3) with  



                                                             

respect to Cynthia's argument that the settlement was unfair, the court did not see in  



                                                               

Cynthia's brief an argument that the case fell under any of the subsections of Rule 60(b).  



                          

                     At   that   same   hearing,   the   parties   further   discussed   the   settlement  



                                                                                                        

negotiations.  David stated that the parties had been unable to come to an agreement for  



                                                                                                           

a  reasonable  payment  plan;  he  asked  that  the  court  establish  such  a  plan.    Cynthia  



responded that she had negotiated in good faith but was unable to pay the $300 to $400  



per  month  suggested  by  the  court;  rather,  she  could  afford  only  a  $250  per  month  



                                                                              

payment at most.  She requested the court find that good faith efforts had been made and  



                                    

that because her good faith offer of $250 per month had not been accepted, "there is  



officially no deal."  The court stated that the parties should continue to negotiate and that  



                                                         

if they could not arrive at a number, the court would "break the tie."  David suggested  



          3          Canon 3(B)(7)(e) of the Alaska Code of Judicial Conduct states that "[a]  



judge may, with the consent of the parties, confer separately with the parties and their  

lawyers  in  an  effort  to  mediate  or  settle  matters  pending  before  the  judge."                                        On  

                                  

October  30,  2006  the  Alaska  Commission  on  Judicial  Conduct  adopted  Advisory  

Opinion 2006-01, which affirms the ability of judges to conduct settlement conferences  

in their own cases and sets guidelines for such conferences.  One of these guidelines  

                                                                                                            

provides that "the judge should be aware that recusal may be required if the case fails to  

                                                                

settle and the judge has learned information during the conference that might undermine  

                                     

objectivity or create the appearance of impropriety."  



                                                                -8-                                                         6843
  


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

that  instead  of  re-negotiating,  the  court  should  review  Cynthia's  DR-250  financial  



affidavit and determine a fair payment.  The court agreed to do so.  



                   In  February  2012  the  court  and  the  parties  conferred  in  a  telephonic  



                                            

hearing.  The court stated that it had reviewed Cynthia's DR-250 financial affidavit and  



had concluded that Cynthia would be required to pay David $250 per month and turn  



over her PFD to him each year.  Cynthia filed a motion for reconsideration from the  



                                                                                                    

court's denial of her Rule 60(b) motion.   In March 2012  the court signed an  Order  



               

Granting Judgment and Payment Schedule.  The order stated that Cynthia owed David  



a judgment of $33,000, which would accrue interest at the statutory rate of 3.75% until  



                                                                               

paid in full.  The order also established a payment plan, according to which Cynthia was  



                                                  

required to pay David $250 each month until the judgment was paid in full.  Further,  



David was entitled to garnish Cynthia's PFD and apply whatever funds he received to  



the outstanding balance.  



                                                                   

                   Cynthia appeals from the court's order denying her Rule 60(b) motion and  



the judgment entered in March 2012.  Both parties proceed pro se.  



III.      STANDARD OF REVIEW  

                   We "analyze settlement agreements using traditional contract principles."4  



                                                                           5  

We review the interpretation of a contract de novo.   "Whether a party intends to be  

                                                



bound by an agreement is a factual question determined by looking at 'the surrounding  

                                                                                                    



facts  and  circumstances  of  each  case,  and  is  reviewed  under  the  clearly  erroneous  



          4        Lewis v. Lewis , 285 P.3d 273, 275 (Alaska 2012) (citing                         Crane v. Crane,  



986 P.2d 881, 885 (Alaska 1999)).  



          5        Villars v. Villars, 277 P.3d 763, 768 (Alaska 2012) (citing Burns v. Burns ,  

                                             

157 P.3d 1037, 1039 (Alaska 2007)).  



                                                            -9-                                                        6843  


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

                   6 

                                                                                        

standard.' "   We will find clear error only when "left with a definite and firm conviction  

that the trial court has made a mistake."7  



                                                                                                                     

                      "A party may seek relief from a final judgment by filing a timely motion  



                                                                                           8  

                                                                                              We review denial of a motion  

under Rule 60 of the Alaska Rules of Civil Procedure." 



                                                                                    9  

for relief from judgment for an abuse of discretion.   



IV.	       DISCUSSION  



           A.	        The Settlement Agreement Entitled Cynthia To Return To "Square  

                      One" After Negotiations Failed.  



                        Cynthia argues that according to the terms of the settlement agreement,               



in the event that she could not obtain a loan, the parties were to return to "square one"  

                                                                  



to begin their settlement negotiations anew.   She observes that we have held we will  

                                                                                    



enforce "agreements to negotiate" only if they contain " 'a more specific way to resolve  

                                                          



.  .  .  differences'  such  that  we  are  able  to  discern  when  the  agreement  has  been  



                  10  

breached."            Cynthia contends that any "agreement to negotiate" to which the parties  



                    

might have agreed was unenforceable because the agreement did not provide a "specific  



                                                                                            

way  to  resolve  differences"  between  them.    Finally,  she  argues  that  the  settlement  



                                                             

agreement is unenforceable because the court "added terms" to the agreement to which  



she did not consent.  



           6          Lewis, 285 P.3d at 275 (quoting                      Juliano v. Angelini , 708 P.2d 1289, 1291   



(Alaska 1985)).  



           7	         Id. (quoting Ford v. Ford , 68 P.3d 1258, 1263 (Alaska 2003)).  



           8          Powell v. Powell , 194 P.3d 364, 368 (Alaska 2008). 
 



           9          Id. 
 



           10
  

                                                                                                           

                      Valdez Fisheries Dev. Ass'n Inc. v. Alyeska Pipeline Serv. Co., 45 P.3d 657,  

                                                                             

667 (Alaska 2002) (quoting Davis v. Dykman , 938 P.2d 1002, 1008-09 (Alaska 1997)).  



                                                                    -10-	                                                              6843
  


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

                    David argues that the settlement agreement "meets all requirements of a  



legally binding contract."  He cites precedent stating that Alaska "recognizes a 'strong  



                                                                               11 

                                                                                  and that settlement agreements  

public policy in favor of the settlement of disputes' " 

"should not be lightly set aside."12  



                    1.        Agreements to negotiate in Alaska law  



                    We  have  held  that  "[a]s  a  general  rule,  agreements  to  negotiate  are  



                                                                                                      

unenforceable because they do not provide a basis for determining the existence of a  



                                                                  13  

                                                                                                              

breach or for giving an appropriate remedy."                          Although "[i]n theory, an agreement to  



                                                                                                                   

negotiate  is  an  enforceable  contract  in  the  sense  that  the  parties  can  be  made  to  

participate in negotiations,"14 such participation "does not necessarily mean that the  



                                                                                       15  

parties will be able to agree to mutually-acceptable terms."     Similarly, we have stated  



                                                             

that "parties who have merely agreed to negotiate necessarily have retained the ability  



to say 'no' to the terms proposed by the other party; that means that it is not inevitable  



                                                        16  

that the parties will be able to agree."                    In short, "an agreement to negotiate is not an  

agreement to agree."17  



          11        Colton v. Colton, 244 P.3d 1121, 1127 (Alaska 2010) (quoting                                 Mullins v.  



Oates, 179 P.3d 930, 937 (Alaska 2008)).  



          12        Id.  



          13        Davis ,  938 P.2d at 1002, 1008.  



          14        Id.  



          15        Id. at 1008-09.  



          16        Id. at 1009.  



          17        Valdez Fisheries Dev. Ass'n Inc. v. Alyeska Pipeline Serv. Co., 45 P.3d 657,
  

                                                                        

667 (Alaska 2002); see also Brady v. State, 965 P.2d 1, 8 (Alaska 1998) (stating that "a
  

                                                                                   

                                                                                                            (continued...)
  



                                                             -11-                                                        6843
  


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

                   A "duty to negotiate in good faith arises out of an agreement to negotiate."18  



However, the duty to negotiate in good faith "is defined by the scope of [the underlying]  

                                             



                 19  

agreement."          In Brady v. State , we considered and rejected a claim for breach of an  



                                                    

agreement to negotiate in good faith, holding that the plaintiffs' claim failed because they  



could "allege no broken promise about a specific process of negotiation, for the State  



                  20  

                                                                                                           

made none."           More recently, in Sea Hawk Seafoods, Inc. v. City of Valdez, we held that  



                                                                  

an agreement to negotiate in good faith was unenforceable when "the parties simply  



                                                                                                 

agreed to negotiate an agreement in the future without establishing a specific process of  

negotiation or a method for resolving disputes."21  



                   2.       The parties' agreement and negotiations  



                   Here the parties agreed that if Cynthia were unable to obtain a $33,000  



loan, she would then "negotiate [with her bank] for the highest amount in good faith that  



she can get" and "[a]t that point the parties will start negotiating on terms in good faith."  



                                                                                                        

"If they can make that deal at that time . . . they have a settlement; if they can't, all bets  



are off and they're back to square one."  The parties' agreement did not define "good  



faith," nor did it spell out "a specific process of negotiation or a method for resolving  



          17(...continued)  



court can never enforce an  agreement to  negotiate s   o as to bind one party to the ultimate  

agreement that the parties sought, but failed, to negotiate").  



         18        Sea   Hawk Seafoods , Inc. v. City of Valdez , 282 P.3d 359, 368 (Alaska  



2012).  



          19       Id.  



         20        Brady , 965 P.2d at 11, 13.  



         21        282 P.3d at 369.  



                                                          -12-                                                     6843
  


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

                                                                                        22  

disputes" if they were unable to agree on a payment plan.    The parties clearly did not                       



agree that the court would determine the terms of the agreement if the parties were  



                                                 

unable to do so.  Although the agreement perhaps required Cynthia to "participate in  



                                                                                                                   23  

negotiations," it did not require her to make or accept any particular offer.                                          In other  



                                   

words, Cynthia never relinquished her "ability to say 'no' to the terms proposed by the  



                   24  

other party."           



                                                                                         

                    Both parties acknowledge that after Cynthia was unable to obtain a second  



                                                                                                                           

mortgage they subsequently engaged in negotiations that proved unsuccessful.  At that  



                                                     

point, if Cynthia had fulfilled her duty to negotiate in good faith under the terms of the  



parties' agreement, she would have been entitled to start negotiations back at "square  



                                            

one"  with  "all  bets  [being]  off."    Accordingly,  from  September  to  December  2011,  



                                                  

Cynthia attempted to return the negotiations back to "square one" several times, but in  



                                                                                      

each instance was prevented from doing so by the court.  At the September 26th hearing,  



for example, Cynthia stated that according to the initial settlement, she was entitled to  



                                                              

a "do-over" if she and David could not agree on a payment.  The court disagreed and  



stated that Cynthia should file a Rule 60(b) motion if she wanted a "do-over."  At that  



same  hearing,  the  court  set  forth  "more  constrained"  guidelines  for  what  it  would  



consider good faith negotiations - setting a range of values that would constitute "good  



                       

faith" -  that were not part of the original agreement.  Similarly in December the court  



                                                                                          

stated that it would "break a tie" if the two parties could not find a meeting point between  



                              

the two figures - a term that, again, does not appear in the initial agreement.  At that  



time Cynthia again asserted that she had made a good faith offer, and she argued that  



          22        Id.  



          23        See Davis v. Dykman, 938 P.2d 1002, 1008 (Alaska 1997).  



          24        See id. at 1009.  



                                                               -13-                                                             6843  


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

because  the  offer  had  not  been  accepted  "there  is  officially  no  deal."    The  court  



disagreed, again refused to permit Cynthia to return to "square one," and ultimately  



imposed a payment plan on her.  



                     3.        Cynthia was entitled to return to "square one."  



                                                                                            

                     We conclude that the parties failed to reach a valid settlement agreement  



                                                         

that bound Cynthia to any particular course of action after Cynthia was unable to obtain  



                                                                                                   

a second mortgage and then engaged in negotiations with David. Cynthia initially agreed  



                                          

that (1) she would attempt to obtain a second mortgage for $33,000 and (2) if she were  



                                                                                      

unable to do so, she would negotiate in good faith on a payment plan.  After she was  



                                                      

unable to obtain the mortgage, she participated in negotiations with David.  Having done  



                                                                                                                   

so, and in the absence of any express finding that Cynthia had failed to  negotiate in  



                                          

"good  faith"  as  that  term  was  contemplated  in  the  original  agreement,  Cynthia  was  



                                                                                                     

entitled to start over at "square one" under the terms of the initial agreement.  When the  



          

court prevented Cynthia from starting over, when the court proceeded to define good  



faith in narrower terms than the initial agreement had done, and when the court then  



                                                                                                      

imposed terms on the parties, the court erroneously interpreted the initial agreement and  



acted beyond the authority granted to it by that agreement.  



           B.        Cynthia's Request For Reassignment  



                                                                                                            

                     In her opening brief on appeal, Cynthia argues that Judge Suddock "should  



                      

not  have  sat  [that  is,  served  as  the  deciding  judge]  on  the  Rule  60(b)  motion"  and  



                                                                                                  

requests that "if the case need be set for further proceedings, the remand be to a different  



judge."  In Cynthia's reply brief she clarifies that "at this point the issue is not whether  



                                                     

the  judge  should  have  declined  to  hear  the  case  after  presiding  at  the  settlement  



                                                                                          

conference.  Rather, the issue is whether there should be a new assignment on remand."  



                                                                -14-                                                         6843
  


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

                   We have previously addressed a party's request for reassignment on remand  



                               25  

                                                                                                   

in Deivert v. Oseira .             There the plaintiff argued that on remand the supreme court  



"should       require       that    the    case     be     assigned       to    a    different      judge,      invoking  



                                                                                            

[AS 22.20.020(a)(9)], which provides for the disqualification of a judge who cannot give  



                                                    26  

a  'fair  and  impartial  decision.'  "                   We  held  that  the  plaintiff's  argument  was  



"premature," explaining that the plaintiff had "not sought the removal of [the judge] in  



                                          

the  superior  court  prior  to  his  contention  here.    He  may  pursue  this  question  on  



             27 

                                                

remand."         Similarly, Cynthia's request is premature because she can seek to disqualify  

the assigned judge on remand pursuant to AS 22.20.020.28  



V.        CONCLUSION  



                   For the foregoing reasons, we REVERSE the judgment of the superior court  



and REMAND for further proceedings.  



          25       628 P.2d 575 (Alaska 1981). 
 



          26       Id. at 579.  
 



          27       Id.
   



          28  

                                                                                                            

                   As noted above, Advisory Opinion 2006-1(2) from the Alaska Commission
  

on Judicial Conduct suggests that a settlement judge should consider recusal if a case  

fails to settle following a settlement conference.  



                                                           -15-                                                          6843  

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