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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  



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,  



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


                  Bolger, Justices.  

                   STOWERS, Justice.  


                   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-----------------------


          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,  


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  



                    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  



                    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  



                    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-----------------------


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  


                    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)  



                    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  


                                                                                      (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.  


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


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-----------------------



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  


                                                                                              We review denial of a motion  

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


for relief from judgment for an abuse of discretion.   


           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  


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. 



                      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  


                                                                                  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  



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  


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  


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



                                                             -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]  



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  



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  


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  


          19       Id.  

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

         21        282 P.3d at 369.  

                                                          -12-                                                     6843

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


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  


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  


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  



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  


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  



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

the assigned judge on remand pursuant to AS  

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.



                   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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