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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 (8/28/2015) sp-7040

Fernandez v. Fernandez (8/28/2015) sp-7040

         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@akcourts.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



CYNTHIA FERNANDEZ,                                    )  

                                                      )        Supreme Court No. S-15729  

                           Appellant,                 )  

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

         v.                                           )  

                                                      )        O P I N I O N  

DAVID M. FERNANDEZ,                                   )  

                                                      )        No. 7040 - August 28, 2015  

                           Appellee.                  )  

                                                      )  



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

                              

                  Judicial District, Anchorage, Patrick J. McKay, Judge.  



                  Appearances:            Cynthia      Fernandez,        pro    se,   Chugiak,  

                  Appellant.      Roberta   C.   Erwin   and   Robert   C.   Erwin,  

                  Palmier~Erwin, LLC, Anchorage, for Appellee.  



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

                               

                  Bolger, Justices.  



                  FABE, Chief Justice.  



I.       INTRODUCTION  



                  A husband and wife filed for dissolution in 1986 and the court awarded the  

                                                          



wife monthly child support.  But the parties did not actually separate until 2007, save a  

                                                                                                     



period apart from 1997 to 2001.  Their dissolution was a sham, structured to shield  



otherwise marital property from the husband's bankruptcy.  After the parties actually  


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

                                                      

separated in 2007, the wife contacted the Child Support Services Division to enforce past  



                                                        

due child support dating back to 1986, which totaled nearly $118,000.  The husband filed  



a motion for relief from the child support judgment.  The superior court granted the  



motion after concluding that the parties' original dissolution had been obtained by a  



fraud  on  the  court.    The  superior  court  used  its  discretion  under  Alaska  Civil  



                                                                                                

Rule 60(b)(6) to set aside the 1986 dissolution and order a division of property and child  



                                                                                                            

support as of 2007, when the parties actually separated.  The wife appeals.  Because the  



parties' 1986 dissolution used the court system as a tool to defraud creditors and thus  



undermined  the  court's  integrity,  we  affirm  the  superior  court's  conclusion  that  the  



dissolution was a fraud on the court under Rule 60(b)(6).  



II.       FACTS AND PROCEEDINGS  



                                       

                   Cynthia and David Fernandez were married in 1979 and had two children  



                            

together, one born in 1983 and the other born in 1985.  They dissolved their marriage in  



1986.    As  part  of  the  dissolution  the  parties  agreed  that  David  would  pay  Cynthia  



                                                                           

monthly child support.  But Cynthia and David did not actually end their relationship in  



                                                                                                              

1986; they agree that they only filed for dissolution to shield some marital assets from  



                                                                                                            

creditors as part of David's bankruptcy. They continued to live together as husband and  



wife until 1997, during which time David provided financial support for the family.  



                                                                                                    

Cynthia and David separated from 1997 to 2001 and David paid child support to Cynthia  



during that time.  They resumed living together as husband and wife from 2001 until  



2007 when they separated for good.  



                                                                         

                   In 2010 Cynthia contacted the Child Support Services Division (CSSD) to  



                                               

enforce David's child support  obligation from 1986 to 2007, which totaled roughly  



$118,000.    David  was  notified  of  Cynthia's  support  enforcement  action  through  an  



August 2010 letter from CSSD.  In September 2010 David moved for relief from the  



child support order.   



                                                             -2-                                                      7040
  


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

                    On August 26, 2014, the superior court concluded that "the dissolution  



proceeding was in essence a sham on the court perpetrated by both parties."  Under the  



                

clear and convincing standard it concluded that there was a "fraud upon the court" by  



both parties because they participated in the sham dissolution which affected David's  



                

creditors.  The superior court stated that "the conduct was egregious and involved a  



                                                                                                 

corruption of the judicial process," and that "it was an intentional plan and scheme."  It  



found that the "appropriate relief" - which it concluded was to "set aside the [decree]  



of dissolution" - "may be afforded under Civil Rule 60(b)(6)."   



                                                                                                   

                    Rule 60(b) allows the court to set aside a final judgment for various reasons,  



such as newly discovered evidence or mistake, and for "any other reason justifying relief  



                                                      1  

                                                         The trial court found that it was "equitable to set  

from the operation of the judgment." 



aside the decree of dissolution, child support judgments, and property judgments entered  



                                                           

in this matter under [Rule] 60(b)(6)."  It then "divide[d] [the] property and determine[d]  



                                                                    

child support as of the date of the parties' final separation in June 2007," making that the  



effective date of the parties' dissolution.  



                                                                                                       

                    The superior court reasoned that if the sham dissolution remained intact,  



both parties would have "secur[ed] an unfair advantage in varying ways":   



                                                                                             

                    Ms. Fernandez would receive or remain entitled to a property  

                                                                  

                   which  was  jointly  purchased  and  contributed  to  by  Mr.  

                                    [2]   

                    Fernandez.          Ms. Fernandez would also receive a windfall  

                    child support judgment including multiple years when the  

                   parties lived together and held each other out as husband and  

                                                                                          

                   wife, and Mr. Fernandez jointly contributed to the support of  

                   the household and children.  Mr. Fernandez would receive all  

                                          



          1        Alaska R. Civ. P. 60(b)(6).  



          2         This  is  the  second  appeal  stemming  from  the  parties'   dissolution.    See  



Fernandez v. Fernandez , 312 P.3d 1098 (Alaska 2013).  The first appeal concerned  

procedural matters largely unrelated to this appeal.   



                                                             -3-                                                       7040
  


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

                                                              

                     equity  and  title  in  [one]  property  as  well  as  not  be[ing]  

                     accountable for other assets which were jointly purchased  

                     during   the  period   of  time  that  they   remained   holding  

                                                                          

                    themselves out as husband and wife.  



                     The parties submitted a joint spreadsheet detailing their marital property,  

                                                                   



which the trial court used "to divide the property that existed as of June 2007" based on  



                                      

the "statutory factors of property settlement."  The trial court stated that its intention was  



                                                                                                                

"to draft a resolution and distribution of property that did not give either side a windfall  



                                                                     

from their fraudulent dissolution."  Among other findings related to specific personal  



                                                                                             

property items, the superior court found that "an equalizing payment of $5,916.97 will  



                                                                                                               

be due from Ms. Fernandez to Mr. Fernandez in order to reach a 55/45 division of the  



estate."  



                                                                                          

                     The superior court's ruling in that matter was consolidated with its decision  



                           

on an April 2014 complaint that Cynthia filed to set aside quitclaim deeds that transferred  



                                                                                                     

property from David to his new wife for $10.  Cynthia alleged that the conveyances were  



                                                                                                

made by David with the intent to hinder, delay, or defraud her as a creditor based on the  



                                                                        

child support payments David owed Cynthia.  The superior court found that the transfer  



                                                            

of property "was done with the intent to keep the majority of the property unavailable  



to the recently renewed child support case," but that no remedy was required because  



                                                                               

David did not actually owe Cynthia child support.  It thus rejected Cynthia's fraudulent  



conveyance claims.  



                                                                                          

                     Cynthia filed a motion for reconsideration, or in the alternative, a stay,  



which the superior court denied.  She appeals.  



                                                                -4-                                                          7040
  


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

III.	     STANDARD OF REVIEW  



                                                                         

                    "We will not disturb a trial court's ruling on a Rule 60(b) motion unless an  



                                                          3  

abuse  of  discretion  is  demonstrated."     We  also  review  for  abuse  of  discretion  "[a]  



                                                                                                                         4  

                                                                                                                            "We  

superior court's determination as to whether fraud upon the court has occurred." 



                                                         

will   find   an   abuse   of   discretion   when   the   decision   on   review   is   manifestly  

unreasonable."5  



IV.	      DISCUSSION  



                                                                                    

                    Cynthia  challenges  the  superior  court's  decision  to  set  aside  the  1986  



                                                                                

dissolution and child support judgments and arrears under Civil Rule 60(b)(6) based on  



its finding of fraud on the court.  



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

                    Under Rule 60(b)(6).  



                    The superior court granted relief under Rule 60(b)(6) for most of David's  



                                                                                                                  

legal obligations flowing from the sham dissolution, which it found was a fraud on the  



court.  Although David requested relief from the child support obligation and arrears, he  



                                                                                                         

did not frame his request in terms of Rule 60(b).  Cynthia argues that the superior court  



cannot grant sua sponte relief under Rule 60(b)(6) and further contends that though  



                                                                                                    

David might have otherwise obtained relief under Rule 60(b)(3), which concerns relief  



from judgment based on allegations of fraud, misrepresentation, or other misconduct,  



          3         Morris v. Morris , 908 P.2d 425, 427   (Alaska 1995); see also Hatten v.  



Hatten , 917 P.2d 667, 670 n.3 (Alaska 1996) ("[R]elief from judgment is addressed to   

the sound discretion of the trial court, and the court's ruling will not be disturbed except             

upon a showing of abuse of discretion.").  



          4  

                                                                                                                         

                    Alaska  Fur  Gallery,  Inc.  v.  First  Nat'l  Bank  Alaska ,  345  P.3d  76,  83  

(Alaska 2015); see also Allen v. Bussell, 558 P.2d 496, 499-500 (Alaska 1976).  



          5  

                                                                                                         

                    Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc. , ___ P.3d ___, Op.  

No. 7003, 2015 WL 1958657, at *3 (Alaska May 1, 2015).  



                                                               -5-	                                                        7040
  


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

                                                        

claims under that provision would be time barred by the rule's one-year time limit.  She  



                                                                   

also argues that relief was unavailable under Rule 60(b)(6) because David's motion for  



                                                                                   

relief from the child support order was not made within a "reasonable time," as the rule  



requires.  Finally, she argues that the superior court's ruling impermissibly "rewarded  



David for his fraud" and thus violated the doctrine of in pari delicto potior est conditio  



defendentis (in pari delicto), which precludes wrongdoers from recovering damages from  



                                                                                                             6  

a wrongdoing where they are at "equal or mutual fault" as the defendant.   David asks  



                                                                   

this court to affirm the superior court's Rule 60(b)(6) relief and argues that the superior  



court acted within its discretion based on the evidence presented at trial.  



                                                                                           

                    "The purpose of [Rule] 60(b) is to provide relief from judgments which, for  



                                                    7  

one reason or another, are unjust."    Rule 60(b) sets forth six reasons for relieving a  



                                                                                               8  

                                                                                                  Reasons (3) and (6),  

party from the effect of a "final judgment, order, or proceeding." 



which   recognize   two   categories   of   fraud,   are   relevant   here:   they   encompass  



          6         BLACK 'S LAW DICTIONARY 911 (10th ed. 2014).   



          7         Wellmix, Inc. v. City of Anchorage                , 471 P.2d 408, 411 n.13 (Alaska 1970).  



 "[C]hild support orders are treated like judgments," and thus "we [have held] that trial   

courts  may  look  to  Civil  Rule  60(b)  for  guidance  in   determining  when  relief  is  

available."  State, Dep't of Revenue, Child Support Enforcement Div. v. Maxwell                                      , 6 P.3d  

733, 736 (Alaska 2000).   



          8                   In a divorce proceeding where marital property has  



                    been  divided,  a  divorce  decree  incorporating  a  property  

                   judgment constitutes a final judgment and may be modified  

                                                                                                          

                    to the same extent as any equitable decree of the court. . . .  

                                       

                    Other   than   a[n   Alaska]   Civil   Rule   77(k)   motion   for  

                                                                

                    reconsideration, which must be made within ten days of the  

                    court's order, an Alaska Civil Rule 60(b) motion provides the  

                    only available means for seeking relief from a final judgment  

                                                                                        

                    of property division.  



Williams v. Williams, 252 P.3d 998, 1005 (Alaska 2011) (footnote omitted).  



                                                              -6-                                                        7040
  


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

                                                                                        

"(3) fraud . . . , misrepresentation, or other misconduct of an adverse party" and "(6) any  



                                                                                 

other reason justifying relief from the operation of the judgment."  "For most fraud, such  



                                                                                

as that perpetrated by one party against another, a party can obtain relief from a judgment  



                                                       9  

by moving under Rule 60(b)(3)."   Such motions must be made within one year after  



                                    10  

                                        In contrast, the savings clause at Rule 60(b)(6) "recognizes the  

entry of the judgment. 



                                                                                                                    11 

                                                                                                                       and contains  

inherent power of courts to set aside judgments for fraud upon the court" 



                      12  

                                                                                                                     

no time limit.             "A party can invoke subsection (b)(6) only if none of the other five  



                                                                                                                13  

clauses [of Rule 60(b)] apply and extraordinary circumstances exist."                                                



                      We  have  held  that  because  Rule  60(b)(6)  is  "a  catch-all  provision  [it]  



                                                        

'should be liberally construed to enable court[s] to vacate judgments whenever such  



                                                                         14  

                                                                                          

action is necessary to accomplish justice.' "                                 But in  light of the two distinct fraud  



           9         Blanas v. Brower Co. , 938 P.2d 1056, 1062 (Alaska 1997).  



           10        Alaska R. Civ. P. 60(b) ("The motion shall be made . . . for reasons (1), (2)       



and (3) not more than one year after the date of notice of the judgment or orders . . . .").                      



           11  

                                                                                 

                     Blanas , 938 P.2d at 1062; see also Allen v. Bussell, 558 P.2d 496, 499  

(Alaska  1976)  ("Civil  Rule  60(b)  specifically  notes  that  although  its  subsection  (3)  

provides  a  method  by  which  a  judgment  can  be  reopened  because  of  'fraud  .  .  .  ,  

                                                                                                                                  

misrepresentation,  or  other  misconduct  of  an  adverse  party,'  the  rule  is  not  to  be  

                                                                        

construed as a limitation of the court's power 'to set aside a judgment for fraud upon the  

                                                                                             

court.' " (omission in original)).  



           12  

                              

                     See  Mallonee v. Grow , 502 P.2d 432, 437 (Alaska 1972) ("[T]he one-year  

time limitation does not apply to proceedings to correct orders obtained by fraud upon  

the court.").  



           13        Juelfs  v.  Gough ,  41  P.3d  593,  597  (Alaska  2002)  (quoting  Lacher  v.  



Lacher , 993 P.2d 413, 419 (Alaska 1999) (internal quotation marks omitted)).  



           14         Clauson  v.  Clauson,  831  P.2d  1257,  1261  (Alaska  1992)  (emphasis  in  



                                                                                                                        

original) (quoting O'Link v. O'Link, 632 P.2d 225, 230 (Alaska 1981)); see also Norman  

                                                                                                                     (continued...)  



                                                                   -7-                                                             7040
  


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

provisions of Rule 60(b), "[n]ot all fraud is 'fraud on the court.' "15  



                    1.       Fraud on the court  



                                                                  

                   Cynthia argues that the superior court incorrectly concluded that David and  



Cynthia's 1986 dissolution was a fraud on court as contemplated by Rule 60(b).  She  



                                            

asserts that fraud on the court should be "narrowly construed to embrace only that type  



                                                                                                       

of conduct which defiles the court itself."  That is precisely the type of conduct at issue  



here.   



                                                                                                  

                   We recently considered what constitutes fraud on the court in Alaska Fur  



Gallery, Inc. v. First National Bank Alaska:  



                             "Fraud upon the court" is an equitable doctrine that  

                                                                           

                   allows a court to set aside a judgment obtained as a result of  

                   fraudulent conduct.  It is an exception to the general rule that  

                   courts [will] not alter or set aside their judgments after the  

                   expiration of the term at which the judgments were finally  

                   entered.  In Alaska, the doctrine is codified in Alaska Civil  

                                                    

                   Rule  60(b),  whereby  a  court  has  the  power  to  set  aside  a  

                                                                                           

                   judgment for fraud upon the court.  [T]he party claiming a  

                                                                                         

                   fraud on the court bears the burden of proving the claim by  

                   clear and convincing evidence.  



                                                                                               

                             We have noted that specific attempts to define fraud on  

                   the court are not particularly helpful, but have nevertheless  



          14(...continued)  



v. Nichiro  Gyogyo  Kaisha,  Ltd. ,  761  P.2d  713,  715  (Alaska  1988)  ("This  clause  of  

Rule 60(b) should be liberally construed to do justice where extraordinary circumstances  

demand it.").  



          15        Great  Coastal  Express,  Inc.  v.  Int'l  Bhd.  of  Teamsters,  Chauffeurs,  



 Warehousemen & Helpers of Am., 675 F.2d 1349, 1356 (4th Cir. 1982); see also Kerwit  

                                                                                        

Med. Prods., Inc. v. N. & H. Instruments, Inc. , 616 F.2d 833, 836-37 (5th Cir. 1980)  

                                                                                            

("Only a small number of those acts that can be considered fraud amount to 'fraud upon  

                                                                                                          

the  court,'  as  that  phrase  is  used  in  [federal]  Rule  60(b).").    Federal  Rule  of  Civil  

       

Procedure 60(b) is substantively parallel to Alaska Rule of Civil Procedure 60(b).  



                                                             -8-                                                      7040
  


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

                    consistently  recognized  that  [a]  fraud  upon  the  court  may  

                    only be found in the most egregious circumstances involving  

                                                                           

                    a corruption of the judicial process itself.  Similarly, we have  

                        

                    adopted the view that the drafters of Rule 60(b) viewed fraud  

                                                           

                    upon the court as referring to very unusual cases involving  

                                                                                    [16] 

                    far more than an injury to a single litigant.  



                                                                                

                    Elsewhere we have noted that fraud on the court "includes behavior which  



                                                                                           

defiles the court itself . . . .  The adjudicative integrity of a court may be defiled by the  



               

behavior of parties or attorneys which results in depriving adverse parties of substantive  

rights."17  



                                                               

                    In  Hazel-Atlas  Glass  Co.  v.  Hartford-Empire  Co. ,  the  United  States  



                          

Supreme  Court  addressed  the  question  of  fraud  on  the  court  when  considering  a  



fraudulently prepared and published article used to support a pending application before  



                                   18  

                                                                       

the U.S. Patent Office.                The Court held that the lower courts should have set aside a  



patent infringement judgment obtained with the fraudulently prepared article that had  



                                19  

                                                           

supported the patent.               It held that the party's actions regarding the article were a fraud  



                                                      

on the court because they were "a deliberately planned and carefully executed scheme  



                                                                                                              20  

to defraud not only the Patent Office but the Circuit Court of Appeals."                                          The Hazel- 



Atlas  Court emphasized that 



                                                 

                     [t]his matter does not concern only private parties.  There are  

                    issues      of     great     moment          to    the    public       in    a    patent  



          16        345  P.3d  76,  85-86  (Alaska  2015)  (alterations  in  original)  (internal  



quotation marks omitted).  



          17        Mallonee , 502 P.2d at 438.  



          18        322 U.S. 238, 240 (1944).  



          19        Id. at 250.  



          20        Id. at 245.  



                                                               -9-                                                         7040
  


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

                    suit.  Furthermore,  tampering  with  the  administration  of  

                   justice in the manner indisputably shown here involves far  

                   more than an injury to a single litigant.  It is a wrong against  

                                                  

                   the institutions set up to  protect and safeguard the public,  

                                                          

                    institutions in which fraud cannot complacently be tolerated  

                                                                                   [21]  

                    consistently with the good order of society.                         



                   We adhered to these principles in  O'Link v. O'Link when we rejected a  



                                                                                                  

claim of fraud on the court based on a party's failure to disclose evidence regarding  



property value, ruling that the matter "was only between the two parties and did not  



                                                                                              22  

                                                                                                  Other jurisdictions  

involve a direct assault on the integrity of the judicial process." 



                                                                                                     

have similarly observed that "fraudulent conduct such as perjury or non-disclosure by  



                                                                                                                            23  

                                                               

a party, standing alone, is insufficient  to  make out a claim for fraud on the court" 

because it "amounts to [nothing] more than fraud involving injury to a single litigant."24  

                                                         



                   Here, the superior court did not abuse its  discretion in concluding that  



                                                                                                   

David and Cynthia's 1986 dissolution was a fraud on the court.  It determined that the  



                                              

1986 dissolution was  a  sham  because the parties only filed for dissolution to shield  



                            

otherwise marital property from David's bankruptcy, a motivation that neither party  



contests.  Because David and Cynthia dissolved their marriage to protect marital property  

from collection by creditors, their fraud "does not concern only private parties"25 and  



          21       Id. at 246 (citation omitted).  



          22        632 P.2d 225, 231 (Alaska 1981).  



          23        Cvitanovich-Dubie v. Dubie, 254 P.3d 439, 456 (Haw. 2011).  



          24        Gleason v. Jandrucko, 860 F.2d 556, 560 (2d Cir. 1988).  



          25       Hazel-Atlas Glass Co. , 322 U.S. at 246.  



                                                            -10-                                                       7040
  


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

                                                                                       26  

"involve[s] far more than an injury to a single litigant."                                  Like the patent infringement  



proceedings which were the focus of the fraud on the court in                                     Hazel-Atlas , bankruptcy  



proceedings are "institutions set up to protect and safeguard the public, institutions in   



which  fraud  cannot  complacently  be  tolerated  consistently  with  the  good  order  of  



              27  

                  Cynthia and David disrupted this good order by attempting to shield assets  

society."                                                                                                             



from creditors through a sham dissolution.  This behavior by the parties sullied "[t]he  



                                    28 

                                       of the superior court because it deprived adverse parties -  

adjudicative  integrity" 



                                                                                                                               

creditors - of their substantive rights to collect debts.  Thus the superior court did not  



abuse its discretion in determining that Cynthia and David's sham dissolution was a  



fraud on the court.  



                     2.         Relief under Rule 60(b)(6)  



                     In Juelfs v. Gough we held that "[u]nlike Rule 60(b)(3) fraud, which can  



                                                          

be brought by the court at any time,  subsection (6) requires a motion be made by one of  



                   29  

                                                                                                     

the parties."           Cynthia argues that the superior court therefore abused its discretion by  



granting David relief under Rule 60(b)(6) when David did not explicitly rely on that  



                                                                                 

provision.  But Juelfs did not require that a motion for relief from judgment specify that  



                                                                                      

such relief is sought under Rule 60(b)(6), and there we construed a husband's opposition  



           

to his former wife's action as such a request even though the husband did not pinpoint  



           26        Alaska  Fur  Gallery,  Inc.  v.  First  Nat'l  Bank  Alaska ,  345  P.3d  76,  86  



(Alaska 2015) (quoting Murray v. Ledbetter , 144 P.3d 492, 499 (Alaska 2006)).  



           27        Hazel-Atlas Glass Co. , 322 U.S. at 246.  



           28        Mallonee v. Grow , 502 P.2d 432, 438 (Alaska 1972).  



           29        41 P.3d 593, 597 (Alaska 2002) (footnote omitted).  



                                                                 -11-                                                            7040
  


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

                                                       30  

                                                                                                

Rule 60(b)(6) in his request for relief.                   We now clarify that the trial court can grant a  



                                                                                                              

motion for relief from a judgment, order, or proceeding if it was based on a fraud on the  



court,  even  if  a  party's  request  for  relief  does  not  take  the  explicit  form  of  a  



Rule 60(b)(6) motion.  This authority is necessary for the superior court to meet its  



responsibility to uphold the court's integrity.  



                   3.        Reasonable time for granting relief under Rule 60(b)(6)  



                    Cynthia also argues that relief was unavailable under Rule 60(b)(6) because  



David's motion for relief was not made within a "reasonable time," as the rule requires.  



                                                         

David responds that the superior court ruled properly within its broad discretion to grant  



relief.  



                    Cynthia suggests that the time frame we should use to evaluate whether  



                                                                                                    

David  sought  relief  in  a  "reasonable  time"  is  the  time  between  the  parties'  1986  



dissolution  and  David's  2010  motion  seeking  relief  from  the  child  support  that  had  



                                                         

accrued since that sham dissolution - a 24-year gap.  Conversely, David argues that the  



                  

time frame at issue is the brief, one-month time period between when he was notified of  



                                                       

Cynthia's child support enforcement action in August 2010 through a letter from CSSD  



                                                                         

and his September 2010 filing of a suit to contest the support collection.  David argues  



that "[t]he issue of child support never came up when the parties were living together as  



                                              

husband and wife until 2007.  When the issue arose in 2010 it was promptly contested  



within a reasonable time."   



          30       See id.  (noting that an opposition in which a party claimed sole custody of  



a pet was in the pet's best interest should be "construe[d] . . . as such a request" under  

Rule 60(b)(6) because "[s]uch language is enough to warrant the trial court's action").  



                                                            -12-                                                       7040
  


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

                    Relief under Rule 60(b)(6) must be requested within a "reasonable time"  



                                                                                                                                 31  

                                                                                                   

and "be made seasonably in light of all the circumstances and  interests involved." 



                                                                                    

"What constitutes reasonable time necessarily depends on the facts in each case.  Courts  



                                            

consider whether the party opposing the motion has been prejudiced by the delay in  



                                                              

seeking relief and whether the moving party had some good reason for failing to act  



             32  

sooner."           We  have  held  that  the  trial  court  did  not  abuse  its  discretion  by  finding  



                                                                  33                   34 

reasonable delays ranging from 17 months                             to 17 years.           In Mallonee v. Grow , we  



noted  that  "[t]he  time  limitations  on  actions  or  motions  seeking  the  rectification  of  



                                                                                                           

injustices arising from judgments or orders obtained through fraud on the issuing court  



                                                                                                   35  

should be as broad as that court's power to correct such wrongs."                                       



                    The superior court did not abuse its discretion in granting Rule 60(b)(6)  

                                                         



relief.    Cynthia,  the  party  opposing  relief  from  the  child  support  order,  was  not  

                           



prejudiced by the delay because she never sought child support during the years when  

                                                                             



David was living with her and they were holding themselves out as husband and wife.  

                                         



          31        Mallonee , 502 P.2d at 437.  



          32        Rowland v. Monsen , 135 P.3d 1036, 1040 (Alaska 2006) (quoting                                       Harris  



v.  Westfall,  90  P.3d  167,  173  (Alaska  2004));  see  also  Mallonee,  502   P.2d  at  437  

("When,  as  in  the  instant  case,  we  must  determine  whether   or  not  a  time  period  is  

reasonable we must consider the interests of the parties and of the courts.").  



          33        Cox v. Floreske, 288 P.3d 1289, 1292-93 (Alaska 2012) (motion under  



Rule 60(b)(5)).  



          34  

                                                             

                    See  Inman  v.  Inman,  67  P.3d  655,  659  (Alaska  2003)  (motion  under  

Rule 60(b)(4)).  



          35        502 P.2d at 437.  



                                                              -13-                                                         7040
  


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

                     4.        In Pari Delicto  



                     Finally,  Cynthia  argues  that  the  superior  court's  ruling  impermissibly  



"rewarded David for his fraud" and thus violated the doctrine of in pari delicto, which  



                                                                                                                           36  

                                                                                                                               That  

precludes court remedies for wrongdoers in the case of "equal or mutual fault." 



defense has been applied to provide that "where the parties to a suit have been guilty [of]       



fraud in connection with the subject matter of the litigation and are in pari delicto, the  



                                                                                                                           37  

                                                                                                                                The  

court of equity . . . will leave them as it finds them, refusing its aid to either." 



                                                                                                            

doctrine of in pari delicto is "grounded on two premises:  first, that courts should not  



                                           

lend  their  good  offices  to  mediating  disputes  among  wrongdoers;  and  second,  that  



denying  judicial  relief  to  an  admitted  wrongdoer  is  an  effective  means  of  deterring  

illegality."38  



                     But the doctrine does not limit the superior court's authority to right wrongs  

                                                                                                                            



in fulfillment of its responsibility to uphold the court's integrity, nor should it be used  



                                                                                                                         

to require that one wrongdoer pay child support to the other when the parties were not  



                                                                                          

living apart and continued to function as a marital unit.   Here, David was "an active,  

                                                                                                                  39 and so was  

voluntary participant in the unlawful activity that is the subject of the suit," 



Cynthia.    But  Cynthia  and  David's  fraud  offended  the  integrity  of  the  bankruptcy  



                     

proceedings and creditor protections, and thus may have interfered with the protection  



                                      

of the investing public.  As a result, the doctrine of in pari delicto does not preclude the  



          36         BLACK 'S LAW DICTIONARY 911 (10th ed. 2014).   



          37         Baker v. Nason , 236 F.2d 483, 489 n.8 (5th Cir. 1956) (quoting 23  AM . JUR .  



F 

                    

  RAUD AND DECEIT  183 (1956)).  



          38         Bateman Eichler, Hill Richards, Inc. v. Berner , 472 U.S. 299, 306 (1985)  



(footnote omitted).  



          39         Pinter v. Dahl , 486 U.S. 622, 633 (1988).  



                                                                -14-                                                          7040
  


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

                                             40  

superior court's remedy here.                    



          B.	       The Superior Court Did Not Abuse Its Discretion In Setting Aside  

                                                                                                                    

                    Child Support Arrears And Ordering Child Support As Of The 2007  

                    Date Of The Parties' Final Separation.  



                                                                                                                                41  

                                                                                                                     

                    The superior court ordered that David only owed child support as of 2007, 



                                                                   

the date when the parties actually separated, instead of 1986, the date of the parties' sham  



                                                                                     

dissolution.  Cynthia argues that this retroactive vacation of child support violates federal  



                                                                                                       

and state law.   She points to Alaska Civil Rule 90.3(h)(2), which states that "[c]hild  



                                              

support arrearage may not be modified retroactively" unless paternity is disestablished.  



                                                                                                     

  Cynthia also points to 42 U.S.C.  666, which requires states to adopt procedures to  



                                                    

prohibit retroactive reduction of child support obligations in order to be eligible for  



                      42  

                          We have previously recognized that, "[i]n general, Alaska and federal  

federal grants.                                                                                        

law prohibit courts from retroactively modifying child support orders."43  David asks that  

                                                                                                             

we affirm the superior court's order with regard to child support.44  



          40        See  id.  (holding  that  the  defense  of  in  pari  delicto  is  unavailable  if  



preclusion of the suit interferes with protection of the investing public).  



          41        Though the superior court concluded that David owed child support during  



the period from 1997-2001 that the parties were separated, it concluded that David had  

already paid that support.  



          42	       See 42 U.S.C.  666(a)(9)(C) (2012).  



          43        Skan v. State, Dep't of Revenue, Child Support Servs. Div.                             , Mem. Op. & J.  



No. 1329, 2009 WL 279097, at *3 (Alaska Feb. 4, 2009).  



          44        David also argues that Cynthia surpassed the five-year time limitations in  

                                                 

AS 09.35.020 and Alaska Civil Rule 69(d) for enforcing child support judgments.  But  

                                                                       

judgments  can  be  executed  upon  beyond  those  time  limits  if  "good  cause"  is  

demonstrated  for  the  delay.    See,  e.g.,  State,  Dep't  of  Revenue,  Child  Support  

                                                                                                           

Enforcement Div. ex rel. Inman v. Dean , 902 P.2d 1321, 1324 (Alaska 1995).  Because  

                                 

                                                                                                              (continued...)  



                                                              -15-	                                                        7040
  


----------------------- Page 16-----------------------

                    We briefly considered whether "Rule 90.3(h)(2)'s prohibition on retroactive  



modification applies where a party seeks relief from judgment under Rule 60(b)" in  



                           45  

                                                    

                                                                  

Aldrich v. Aldrich.            In Aldrich we held that "to the extent that [one parent's] motion for  



                                                                                     

past child support would be interpreted solely as a motion to modify child support under  

                                                                                                                46  Cynthia  

Rule 90.3(h), Rule 90.3(h)(2) bars the retroactive modification that he seeks." 



thus argues that the superior court abused its discretion in granting David relief from  

                                                                



child support arrears.  



                    But  Rule  90.3(h)(3)  provides  an  exception  to  Rule  90.3(h)(2)'s  bar  on  



                                    47  

                                         We have explained that this exception provides that, "if the  

retroactive modification.                                                                                       



child or children live with the obligor parent, with the consent of the obligee parent, for  

                                                                                            



a  period  greater  than  nine  months,  and  the  obligor  parent  does  not  make  support  

                                                                                                    

payments during that time, then the obligee parent may not collect the arrears."48                                          In  

                                  



Murphy v. Murphy , we stated that this rule is "based on principles of equitable estoppel"  

                                   



and "would give [an obligor parent who lived with her children] a defense if [the parent  

                                                                                                                 



who is owed child support] were seeking to collect child support arrears that had not yet  

         

been paid."49  

                     



          44(...continued)  



the superior court made no finding as  to whether  good cause  existed here and we resolve  

the child support issue on other grounds, we do not consider this argument.  



          45        286 P.3d 504, 508 n.19 (Alaska 2012).  



          46        Id.  



          47        See Webb v. State, Dep't of Revenue,  Child Support Enforcement Div. ex  



rel. Webb, 120 P.3d 197, 199 (Alaska 2005).  



          48        Id. (footnote omitted).  



          49        Mem. Op. & J.  No.   1192,  2004 WL 2680926,  at  *4 n.12 (Alaska Nov. 24,  



                                                                                                           (continued...)  



                                                             -16-                                                       7040
  


----------------------- Page 17-----------------------

                     Although Rule 90.3(h)(3) is not directly applicable here because it requires   



that  the  obligor  parent  have  "primary  physical  custody,"  which  David  and  Cynthia  



                                                              

appeared to share during the periods at issue since they were living with their children  



                                                                                                       

as a family, the policy interest behind this exception governs our ruling affirming the  



                                  

superior court.   That interest applies because David lived with Cynthia and his children  



                                                            

from 1986 to 1997 and 2001 to 2007, and he supported them between 1997 and 2001.  



                                                                  

"We have previously stated that when 'a straightforward application of [a court] rule  



                                                                                                               

yields [an] extreme or absurd . . . result,' it may 'require us to bend the plain language  



                      50  

                          In  Webb v. State, we refused to bend the plain language of Rule 90.3  

of the rule.' " 



because "[r]etroactively modifying the child support order to permit Webb to evade his  

                                                                                                                        



child support obligations would result in a windfall to Webb and deprive the children of  

                                                                                



                                                      51  

funds  to  which  they  are  entitled."                     Here,  however,  because  David  lived  with  and  



provided financial support for his children from 1986 to 1997 and 2001 to 2007, and  



actually did pay child support from 1997 to 2001, the superior court's grant of relief  

                                                          



creates no windfall to David and does not deprive his children of funds to which they are  

                                                                



entitled.    As  a  result  the  superior  court  did  not  abuse  its  discretion  in  setting  aside  

                                                                       



David's child support arrearage for the time the parties lived together as a family.  



                     Cynthia also challenges as a fraudulent conveyance David's transfer of  

                                          



property to his new wife for $10.  The superior court found that David's transfer of a  



                                                     

property to his new wife for $10 "was done with the intent to keep the majority of the  



          49(...continued)  



2004) (citing Civil Rule 90.3(h)(3)).  



          50         Webb,  120  P.3d  at  199  (alterations  and  omission  in  original)  (quoting  



Mundt v. Nw. Explorations, Inc. , 963 P.2d 265, 270 (Alaska 1998)).  



          51        Id. at 200.  



                                                               -17-                                                          7040
  


----------------------- Page 18-----------------------

                                                                                                

property unavailable to the recently renewed child support case and garnishment by  



                                                      

[CSSD]."  But because the superior court found that Cynthia "was not owed any child  



                                                       

support," it reasoned that "no remedy is necessary."  We affirm the superior court's order  



                

regarding  child  support  and  thus  we  do  not  need  to  address  Cynthia's  fraudulent  



conveyance claims.  



V.        CONCLUSION  



                                                                                                           

                   Because the Fernandezes committed a fraud on the court by filing a sham  



dissolution in 1986, we AFFIRM the superior court's order.  



                                                            -18-                                                      7040
  

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