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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jackson v. Sey (12/27/2013) sp-6860

Jackson v. Sey (12/27/2013) sp-6860

         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, e-mail  

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



                  THE SUPREME COURT OF THE STATE OF ALASKA  



WILLIE K. JACKSON,                                       )  

                                                         )    Supreme Court No. S-14496  

                          Appellant,                     )  

                                                         )    Superior Court No. 3AN-08-04884 CI  

         v.                                              )  

                                                         )   O P I N I O N  

AMIE SEY,                                                )  

                                                         )   No. 6860 - December 27, 2013  

                          Appellee.                      )  

                                                         )  



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

                                                                

                  Judicial District, Anchorage, Peter M. Michalski, Judge.  



                  Appearances: Willie Jackson, Seagoville, Texas, pro se.  No  

                  appearance by Appellee.  



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

                                                                                

                  Bolger, Justices.   



                  MAASSEN, Justice.  



I.       INTRODUCTION  



                  In 2008 the superior court granted a default divorce to Amie Sey after her  

                                                                             



husband Willie Jackson, who was incarcerated at the time, failed to appear telephonically  

                                                              



at a hearing.  Jackson filed a motion for relief from judgment under Alaska Civil Rule  



60(b), arguing that Sey had made misrepresentations and withheld information about  



marital property.  The court allowed Jackson to conduct discovery in support of the  



motion, but it later dismissed the motion for lack of prosecution under Alaska Civil Rule  

                                                           


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41(e).  The court  also determined that the time to appeal or to request Rule 60(b) relief  



was  long  past.    Jackson  appeals  this  dismissal  and  raises  several  challenges  to  the  



underlying divorce decree. We reverse the dismissal of Jackson's Rule 60(b) motion and  

                                                                                                          



remand for consideration of its merits.  



II.       FACTS AND PROCEEDINGS  



                    Willie Jackson was incarcerated soon after he and Amie Sey married in  

                                                                                                                   

2003.  Sey filed for divorce in February 2008.1  

                                                                        In his answer, Jackson contested Sey's  



                                        

description of the marital property, and he asserted that she had "probably obscured"  



                                                                                            

property that should have been part of the marital estate.  He also informed the superior  



court that he was incarcerated in federal prison in California.  



                    After Jackson failed to appear telephonically at a trial-setting conference,  



the court scheduled another hearing for May 29, 2008.  Although the court sent notice,  

                                                        



Jackson alleges on appeal that he did not receive it, and he did not appear at that hearing  

                                                                          



either.  The calendaring order had described the hearing as a settlement conference, but  

                                                                         



the  court  heard  testimony  from  Sey  and  then  granted  a  default  divorce.    The  court  



interpreted Jackson's answer to the complaint as indicating that he did not disagree with  

                                                      



Sey's description of the marital property, and the judge informed Sey that Jackson could  

                                                                                                        



take action later if he wished to contest the property's disposition.  



                    The day after the hearing, on May 30, the court received two motions from  

                                                            



Jackson dated three days before.  The first motion was a request that Jackson be allowed  

                                                                                                      



to participate telephonically in any future hearings.  The second was a request that the  



court compel disclosure of information about a Key Bank account that Jackson believed  

                                                                                                   



          1         Both Jackson and Sey acted pro se throughout the proceedings.
  

                                                                          



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Sey held, as well as her employment information and tax returns.  A court clerk found  

                                                                                                       



the filings deficient and returned them both to Jackson.   



                    The court issued its written divorce decree on June 9, 2008.  The decree  

                                                                                                               



stated  that  "[b]ecause  Mr.  Jackson  did  not  .  .  .  make  arrangements  to  appear  

                                                          



telephonically, or for a continuance, the court defaulted him and heard the matter."  The  

                                                      



court established the date of separation as "sometime after Mr. Jackson was arrested" and  

                                                                                           



found there was no marital property to be divided.  



                    On  June  18,  2008,  Jackson  requested  an  extension  of  time  to  file  the  



motions that had been returned due to procedural deficiencies.  The court denied the  

                           



request for extension on grounds that the divorce had already been granted.  The court  



notified Jackson, however, that "[i]f the defendant believes that the property division  

                                                                                                 



needs to be further considered, application may be made pursuant to Civil Rule 60."  



                    Jackson accordingly filed a Rule 60(b) motion in August 2008, claiming  



that Sey  had made both unintended and fraudulent misrepresentations during the divorce  

                                                          



trial.  The court held a hearing on this motion in December 2008, and Jackson appeared  



telephonically.  The court directed Sey to provide the requested financial information.  



The court also gave Jackson 20 days to look over this information and to file a proposed  

                                                                         



order either withdrawing the Rule 60(b) motion or setting out the precise modification  



to the divorce decree that he was requesting.  



                    Sey provided the financial information Jackson requested.  In January 2009,  



Jackson moved for expanded discovery in order to determine whether Sey had dissipated  

                                                                       



any marital property during the separation period.  Jackson also asked that Sey pay for  

                   



the  production  of  these  documents.    The  court  denied  the  request  that  Sey  pay  for  

                             



production and stated that "[t]he remainder of the motion is, with all due respect, unclear  



and  denied  without  prejudice."    Jackson  next  made  what  he  termed  a  "motion  in  

                                



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clarification,"  in  which  he  attempted  to  explain  to  the  court why  he  was  asking  for  



                                      

expanded discovery.  He asserted that the financial documents disclosed by Sey did not  



provide details about transfers; such information would, he argued, help him discern  



whether Sey had other bank accounts, such as with Key Bank.  The court treated the  



motion in clarification as a motion for reconsideration and denied it in June 2009.  



                    Jackson next pursued discovery directly from Key Bank, which informed  



him that it would not release any information without a court order.  Following several  

                                                                     



additional communications between the court and Jackson, the court granted Jackson  

                                                                      



access to Sey's bank records.  



                    The record reveals no further filings or correspondence from Jackson to the  

                                                                                                     



court over the course of the next year.  On February 4, 2011, the court issued a notice of  

                                                                                                        



dismissal for lack of prosecution pursuant to Alaska Civil Rule 41(e)(1)(A).2  

                                                                                                                    Jackson  



                                                                                                                  

responded by filing what he termed a motion for partial summary judgment.  He asked  



that the court award him judgment in the amount of $14,750 based on the information  



he had received about Sey's car, tax return, and credit union bank account.  He claimed  

                                                                                 



that he sent Sey a letter on March 8, 2010, requesting that she give a deposition on  

                                                          



written interrogatories, but that she never responded.  



                    The court denied Jackson's motion and closed the  case, reasoning that  

                                                                                                   



"[t]he burden  is  on  the  defendant to show that the judgment of the court should be  

                               



reversed.  The time for appeal would appear to have run long ago.  The period for relief  

                                              



          2         The rule provides: "The court on its own motion or on motion of a party to  

                                                                                                                

the action may dismiss a case for want of prosecution if . . . the case has been pending  

                                                                                         

for more than one year without any proceedings having been taken."   



                                                           -4-                                                              6860  


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

from  judgment  [pursuant  to  Civil  Rule  60(b)(6)]  seems  similarly  to  be  long  past."3  



Jackson  moved  for  reconsideration,  pointing  out  that  he  had  not  participated  in  the  



divorce trial and that the court had afterwards allowed him  to  conduct discovery in  

                                                                                                    



support of his Rule 60(b) motion.  After the court denied the motion for reconsideration,  

                                                    



Jackson filed another motion, termed "motion to recall the mandate" (in essence another  

                                                                       



request for reconsideration), asking the court to reopen the case for consideration of his  

                                                                                           



post-trial discovery.  The court denied the motion, stating that "[t]he motion for partial  

                                                 



summary judgment did not establish good cause for lack of prosecution, thus the case  



was properly dismissed."   



                    Jackson appeals, challenging the Rule 41(e) dismissal, the court's finding  

                                                                                                         



that his Rule 60(b) motion was untimely, and several aspects of the underlying divorce  

                                                                                                  



decree.  He also asks that the divorce decree be vacated.  Sey does not participate in this  

                                                                                                     



appeal.  



III.      STANDARD OF REVIEW  



                    We  review  de  novo  a  superior  court's  interpretation  of  court  rules,  

                                                                                      



exercising our independent judgment.4  

                                                             "Under the independent judgment standard we  



                                                                                                                                   5  

                                                                         

adopt the rule of law that is most persuasive in light of precedent, reason, and policy." 



          3         The court's reference to Rule 60(b)(6) appears to be mistaken, as the focus                         



of Jackson's motion shows that it was filed pursuant to Rule 60(b)(3).  



          4         Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 204 P.3d 1023, 1026  



(Alaska 2009).  



          5         Id. (footnotes omitted).  



                                                             -5-                                                            6860
  


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

IV.	      DISCUSSION  



          A.	       It Was Error Not To Consider Jackson's Rule 60(b) Motion On The  

                    Merits.  



                                                                                                         

                    Jackson challenges the superior court's refusal to consider the merits of his  



                                             

Rule 60(b) motion. The court dismissed the motion pursuant to  Rule 41(e)(1) for failure  



to prosecute, finding in addition that the motion was barred because of the passage of  



time since the entry of judgment.  We conclude that the superior court erred on both  

                                                    



counts.   



                    Rule 41(e)(1) and (3), read together, provide that "[t]he court on its own  

                                                                                                                



motion . . . may dismiss a case for want of prosecution if . . . the case has been pending  

                                                            

for more than one year without any proceedings having been taken"6 and "good cause  



                                                 7  

                                                                                                                

to the contrary is not shown. . . ."   We do not believe that a post-judgment Rule 60(b)  



                                           

motion, like the one at issue here, is itself a pending "case" that is subject to dismissal  



                                                                                                   

under Rule 41(e).  Jackson's motion was filed in a divorce case that had been concluded  



                                                                                                  

by the entry of final judgment; the motion sought, unsuccessfully, to reopen that closed  



case.  At the time of the Rule 41(e) dismissal, there was no pending case to which Rule  



41(e) could apply.  



                    The court's secondary conclusion that Jackson's Rule 60(b) motion was  



time barred also does not justify the court's failure to consider the motion on the merits.  

                                                                               



Motions  like  Jackson's  that  are  made  pursuant  to  Rule  60(b)(3)  -  alleging  fraud,  



misrepresentation, or "other misconduct of an adverse party" - must be brought within  

                                                                                                           



          6         Alaska R. Civ. P. 41(e)(1).  



          7         Alaska R. Civ. P. 41(e)(3).  



                                                           -6-                                                             6860  


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

                                                                         8 

                                                            

a year of the challenged judgment or order.   Jackson filed his original Rule 60(b) motion  



in August 2008, just two months after entry of the final divorce decree and thus clearly  



within the time allowed.  At the December 2008 hearing the superior court appeared to  

                                                                                                    



accept the Rule 60(b) motion, though giving Jackson an opportunity to withdraw or  

                                                                                                                                  



clarify it within 20 days of receiving Sey's discovery.  Jackson responded by pursuing  

                                                                                                 



further discovery instead.  While some of Jackson's discovery efforts were misdirected,  

                                               



the  superior  court  did  appear  to  authorize  this  course,  particularly  when  it  granted  



Jackson's later request for direct access to Sey's bank records.  By allowing additional  

                                                           



discovery  without  imposing  any  new  deadlines  for  Jackson's  supplementation  or  



clarification  of  his  pending  Rule  60(b)  motion,  the  court  left  him  without  a  clear  



timetable for the motion's consideration and decision.9  

                                                                                                   Jackson also had no apparent  



              

reason to believe that the 60(b) motion, whether adequately supported or not, had not  



                                                                                                                                             

been timely filed.  Having authorized Jackson's pursuit of additional discovery on the  



motion,  the  superior  court  should  have  imposed  a  new  deadline  for  Jackson  to  



supplement or clarify his motion in light of that discovery, then decided the motion on  



its merits.  It was error to dismiss the motion as untimely on this record.  



            B.	        Jackson's Argument That The Divorce Decree Is Void Must First Be  

                       Addressed To The Superior Court.  



                       Jackson asks this court to hold that the divorce decree is void because of  

                                                                                                                                     



his lack of participation in the May 29, 2008 evidentiary hearing, pointing to his alleged  

                                                                                                                                  



lack of notice and his request for telephonic participation (received by the court the day  



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



            9          See Mitchell v. Teck Cominco Alaska Inc., 193 P.3d 751, 758-60 (Alaska                                



2008) (holding that superior court erred in granting summary judgment without ruling       

on  the  other  party's  timely  filed  Rule  56(f)  request  for  additional  time  to  conduct  

discovery).  



                                                                      -7-	                                                                     6860
  


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

after  the  hearing).          Civil  Rule  60(b)(4)  allows  for  relief  from  judgment  where  the  

                                                                                                                



underlying judgment is void.  A movant may argue that a judgment is void based on the  

                                                            



court's  lack  of  personal  jurisdiction  or  a  denial  of  due  process.10  

                                                                                                       Unlike  the  other  

subsections of Rule  60(b), Rule 60(b)(4) has no time limit.11  

                                                                                              Jackson's Rule 60(b)  



motion, however, did not seek to void the judgment due to his lack of participation, and  

                            



we do not interpret any of his other filings in the superior court as articulating such a  

                                         



request.  Although Jackson does not appear to be time barred from bringing another Rule  

                                                                                                              



60(b) motion  pursuant to subsection (4), such a motion must be brought first in the  

                      



superior court.12  

                          We do not consider it here, nor do we express any view of its merit.  



          C.        Jackson Failed To Timely Appeal The Underlying Divorce Decree.  



                    Jackson raises other arguments that we read as direct attacks on the June  



                                                                                           

2008 divorce decree, such as that the superior court erred in defaulting him and that it  



                                                                       

erred in its determination of the date the parties separated.  These arguments, however,  



are in the nature of an appeal from the decree, and as such they are untimely.  



                    A divorce decree is a final and appealable order.13  

                                                                                             A notice of appeal must  



                                                                                             14  

                                                                                                  

be filed within thirty days of the judgment that is being appealed.                             Jackson filed a notice  



                                   

of appeal in July 2011.  Although this immediately followed the superior court's denial  



          10       Aguchak v. Montgomery Ward Co. , 520 P.2d 1352, 1354 (Alaska 1974).  



          11       Kennecorp Mortg. & Equities v. First Nat. Bank of Fairbanks , 685 P.2d  



1232, 1236 (Alaska 1984) (quoting 11 WRIGHT &  A.  MILLER ,  FEDERAL PRACTICE AND  

PROCEDURE   2862, at 197 (1973)).  



          12        See Juelfs v. Gough, 41 P.3d 593, 598 (Alaska 2002) (holding that party           



was not entitled to raise grounds for Rule 60(b) relief for the first time on appeal).  



          13       Husseini v. Husseini , 230 P.3d 682, 686 (Alaska 2010).  



          14        Alaska R. App. P. 204(a)(1).  



                                                           -8-                                                          6860
  


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

of Jackson's request for reconsideration of the Rule 41(e) dismissal of his pending Rule  



60(b) motion, Jackson asserted that the appeal also concerned his "denial of participation  

                                                                      



in hearing of May 29, 2008."  Jackson submitted another, more detailed notice of appeal  

                                                                                       



and statement of points on appeal in October 2011.  These notices of appeal were filed  

                                                                                                          



over three years after the divorce decree was entered, long after the 30-day deadline for  

                                                                                                       



filing an appeal had passed.  



                    Alaska  Appellate  Rule  521  provides  that  the  appellate  rules  "may  be  

                                                                                                                      



relaxed or dispensed with by the appellate courts where a strict adherence to them will  

                                                                  



work surprise or injustice."  The considerations that should be weighed in determining  

                       



whether to relax the rules include "the right to appellate review, the willfulness and  

                                                                                                      



extent of the rules violation and the possible injustice that might result from dismissal."15  



                                                                                                 

Jackson initially chose to address his grievances solely through the Rule 60(b) process.  



                                                                                                     

Over three years passed between entry of the decree and Jackson's first notice of appeal.  



We conclude that the deadline for appeal should not be relaxed in this case.  



V.        CONCLUSION  



                                                               

                    We REVERSE the superior court's dismissal of Jackson's Civil Rule 60(b)  



                                                                        

motion and REMAND for consideration of the motion in accordance with this opinion.  



          15        Smith's Estate v. State, 635 P.2d 465, 467 (Alaska 1981) (quoting Ballard  

                                  

v. Stich, 628 P.2d 918, 921 (Alaska 1981)) (internal quotation marks omitted).  



                                                             -9-                                                               6860  

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