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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re T.V. (3/18/2016) sp-7089

In Re T.V. (3/18/2016) sp-7089

           Notice:   This opinion is subject to correction before publication in the P                        ACIFIC  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  

                                                                                                                               

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                        THE SUPREME COURT OF THE STATE OF ALASKA                                         



In  the  Matter  of  a  Petition for                               )  

Approval  of  a  Minor  Settlement                                 )          Supreme  Court  No.  S-15492  

                                                                   )  

T.V.                                                               )          Superior  Court  No.  3AN-13-00171  PR  

                                                                   )  

                                                                                                   

                                                                   )          O P I N I O N  

                                                                   )  

                                                                                                                     

                                                                   )          No. 7089 - March 18, 2016  

                                                                    

_______________________________ )  



                                             

                      Appeal from t                                                                               

                                             he Superior Court of the State of Alaska, Third  

                                                                                                                     

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



                                                                                                                            

                      Appearances:  Jack Vinson, pro se, Anchorage, Appellant.  



                                                                                                                      

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

                                     

                      Bolger, Justices.  



                                             

                       STOWERS, Justice.  



I.         INTRODUCTION  



                                                                                                                                    

                      T.V., a minor, was struck by a car in 2012.  T.V.'s father, Jack Vinson,  



                                                                                                                                  

hired counsel and petitioned the superior court on T.V.'s behalf for approval of insurance  



                                                                                                                                            

settlements related  to  that  accident.   Jack  advised the  court that  the  funds  from the  



                                                                                                                                              

settlements would be placed in a special needs trust administered by the Foundation of  



                                                                                                                                             

the Arc of Anchorage for T.V.'s care.  The superior court approved the settlements on  



                                                              

the recommendation of a magistrate judge.  



                                                                                                                                                

                       Slightly more than one year after the approval of the petition, Jack filed a  



                                                                                                                                              

motion requesting that the settlement funds be removed from the trust and returned to  


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 him.   The magistrate judge overseeing the matter recommended that the superior court                                                                                                                                                                                                                                                                                                                                                                                                                                          



  deny the motion because the trust was not a party to the minor settlement proceeding, but                                                                                                                                                                                                                                                                                                                                                                                                                                                  



 the court did not rule on the magistrate judge's recommendation. Jack appealed directly                                                                                                                                                                                                                                                                                                                                                                                                                         



 to this court, but we remanded to the superior court to review and rule on the magistrate                                                                                                                                                                                                                                                                                                                                                                                                     



judge's   order.     A  second   magistrate   judge   conducted   a   hearing   and   made   another  



 recommendation to deny Jack's motion. The superior court approved the denial, and we                                                                                                                                                                                                                                                                                                                                                                                                                                                          



 now review the superior court's order.                                                                                                                                                                      



                                                                                     We AFFIRM the superior court's denial of Jack's motion to remove the                                                                                                                                                                                                                                                                                                                                                                                    



  settlement funds from the trust and return them to him.                                                                                                                                                                                                                                                                    



  II.                                       FACTS & PROCEEDINGS                                                   



                                                                                      In July 2012 T.V., a minor, was hit by a car and was left paralyzed from the                                                                                                                                                                                                                                                                                                                                                                            



  chest down.                                                                  In January 2013 Jack, represented by attorney Charlie Coe, petitioned the                                                                                                                                                                                                                                                                                                                                                                                     



  superior court for approval of insurance settlements related to the accident. The petition                                                                                                                                                                                                                                                                                                                                                                                                                     



 was assigned to Magistrate Judge John Duggan, acting as probate master, and Superior                                                                                                                                                                                                                                                                                                                                                                                                                     



  Court Judge Patrick J. McKay.                                                                                                                



                                                                                     Magistrate Judge Duggan held a hearing on the petition in February 2013.                                                                                                                                                                                                                                                                                                                                                                                                        



 Atthehearing                                                                            Coedescribedthe settlements and informed                                                                                                                                                                                                                                       MagistrateJudgeDuggan that                                                                                                                                        



 the proceeds from the settlements would be placed in a special needs trust for T.V.'s                                                                                                                                                                                                                                                                                                                                                                                                                                 



 benefit.  Coe explained that the special needs trust would ensure that the money could  



 be used for T.V.'s benefit while allowing himto maintain his eligibility for Medicaid and                                                                                                                                                                                                                                                                                                                                                                                                                                                 

  other public benefits programs.                                                                                                                                                                      1  



                                            1                                         The terms of the trust help the beneficiary remain eligible for government                                                                                                                                                                                                                                                                                                                     



  assistance, particularly Medicaid, while allowing himto benefit fromother funds he may                                                                                                                                                                                                                                                                                                                                                                                                                                               

 have available.                                                                                   Funds placed in this type of trust are not counted when determining                                                                                                                                                                                                                                                                                                             

  eligibility   for   certain   public   assistance   programs.    7  Alaska   Administrative   Code  

  (AAC) 100.606(a)-(b) (2015).                                                                                                                  



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                             Coe later filed documents indicating that the settlement proceeds would be                                                                                 



                                                                                                                                           2  

deposited with the Arc of Anchorage's pooled trust, Arctrust II.                                                                                                            

                                                                                                                                               Arctrust II's purpose  



                                                                                                                                                                                         

is to "promote the Beneficiaries' comfort and happiness, by using the trust property to  



                                                                                                                                                                                

provide and serve the interests of the Beneficiaries." It is not intended to provide "basic  



                                                                                                                                                                                     

maintenance, support, medical, dental and therapeutic care, or any other appropriate care  



                                                                                                                   

or service that may be paid for or provided by other sources."  



                                                                                                                                                                                       

                             MagistrateJudgeDugganrecommendedthatthesuperior court approvethe  



                                                                                                                                                                                 

petition regarding the settlements, and the superior court did so in mid-February 2013.  



                                                                                                                                                                                         

                             Jack apparently became displeased with the Arc's care and management of  



                                                                                                                                                                             

T.V.'s settlement money. In late February 2014, Jack, proceeding pro se, filed a motion  



                                                                                                                                                                                   

in the probate case requesting that the "A[rc] return all fund[s] with int[erest] to Jack  



                                                                                                                                                                                 

Vinson . . . because the A[rc] has not been in touch or would not give out [T.V.'s] funds  



                                                                                                                                                                                         

when requested."  Jack alleged that "[f]amily att[orney] Charlie Coe is on the Board of  



                                                                                                                                                                                  

the A[rc] [and] [we] believed in att[orney] Coe [and] A[rc].   But when funds were  



                                                 

requested [they were] declined."  



                                                                                                                                                                                       

                             Magistrate Judge Duggan, acting as probate master, recommended that the  



                                                                                                                                                                                

superior court deny the motion on March 4, 2014, noting, "A[rc] is not a party to minor  



                                                                                                                                                                                       

settlement  proceeding.                                  Funds  were  to  be  deposited  in  Special  Needs  Trust  as  



                                                                                                                                                                                               

authorized." The superior court did not rule on the magistrate judge's recommendation.  



                                                                                                                                                                                      

Jack appealed directly to this court on March 21, 2014.  We remanded the issue to the  



               2             This opinion refers to the Arc of Anchorage, the Foundation of the Arc of                                                                                   



Anchorage, and Arctrust II collectively as "the Arc" throughout.                                                                               Coe disclosed on the                    

record that he was the president of the Foundation of the Arc of Anchorage, which is the                                                                                               

Arctrust   II's   trustee.     Coe   stated   he   would   not  vote   on   any   matters   related   to  

disbursements for T.V., a practice he had established in past cases.                                                                 



                                                                                           -3-                                                                                    7089
  


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

                                                                                                                                             3  

superior court to review and rule on the magistrate judge's recommendation.                                                                      We  



                                                                                                    4  

retained jurisdiction to review the superior court's order.                                            



                       At the request of the superior court, Magistrate Judge James Stanley held  

                                                                                                                                                 



a   hearing   to   take   additional   evidence   relating   to   Magistrate  Judge   Duggan's  

                                                                                                                                     



March 4, 2014 recommendation.  During this hearing an Arc representative stated that  

                                                                                                                                                  



the Arc had no record that Jack ever asked the trust to purchase anything using trust  

                                                                                                                                                



funds.          Jack  indicated  that  his  requests  for  funds  were  verbal,  which  the  Arc  

                                                                                                                                                



representative noted was not a sufficient way to request funds from the trust.   The  

                                                                                                                                                



representative also stated that the Arc was willing to work with Jack to remedy his  

                                                                                                                                                   



concerns or to help him transfer the funds to a different trust.  At the conclusion of the  

                                                                                                                                                   



hearing Magistrate Judge Stanley determined that "[t]he March 4, 2014 order represents  

                                                                                                                                       



a correct legal decision and should stand. A[rc] is not a party to this minor settlement  

                                                                                                                  



case. . . .   Refund of monies now held in trust for the benefit of [T.V.] could have  

                                                                                                                                               



unintended adverseconsequences." MagistrateJudgeStanleyrecommended thesuperior  

                                                                                                                                          



court  deny  Jack's  motion.                       The  superior  court  adopted  Magistrate  Judge  Stanley's  

                                                                                                                                       



recommendation and denied the motion.  Jack was provided the opportunity to file a  

                                                                                                                                                      



supplemental brief with this court, but he did not do so. We now consider Jack's appeal.  

                                                                                                                                            



III.        STANDARD OF REVIEW  

                                             



                       "We may affirm the superior court's decision on any basis appearing in the  

                                                                                                                                                   

record."5          "We review questions regarding  personal and  subject matter  jurisdiction  

                                                                                                                                    



            3          In  the   Matter   of   T.V.,   No.   S-15492   (Alaska   Supreme   Court   Order,  



May 5, 2015).     



            4          Id .  



            5          Pierce  v.  Pierce,  949  P.2d  498,  500  (Alaska  1997)  (citing Far  North  

                                                                                                                                             

Sanitation, Inc. v. Alaska Pub. Utils. Comm'n, 825 P.2d 867, 869 n.2 (Alaska 1992)).  

                                                                                                                                          



                                                                         -4-                                                                   7089
  


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

de   novo   because   'jurisdictional   issues   are   questions   of   law   subject   to   this   court's  

independent judgment.' "                   6  



IV.        DISCUSSION  



                                                                                                                                   

                      Jack's precise claims are unclear.  His underlying motion to the superior  



                                                                                                                                          

court sought to have the Arc provide the settlement money to him with interest.  But  



                                                                                                                                           

Jack's notice of appeal states that he is appealing the order approving the petition for  



                                                                                                                                      

minor  settlement,  which  was  issued  on  February  19,  2013.                                           He  claims  that  "[t]he  



                                                                                                                                      

 Superior Court's decision was wrong . . . [b]ecause the Court [and] [T.V.] [and] family  



were mislead [sic].  18 months later still no help for [T.V.].  No money - No trust -  



       

No A[rc]."  



                                                                                                                                       

                      If  we  read  Jack's  motion  literally,  his  motion  is  one  for  relief  from  



                                                                                  

judgment under Alaska Rule of Civil Procedure 60(b)(1).  Rule 60(b)(1) applies when  



                                                                                                                                

relief fromjudgment is justified because of "mistake, inadvertence, surprise or excusable  



                                                                                                                                 

neglect." Jack alleges that he "[b]elieved that [his] lawyer Charles Coe (AKA President  



                                                                                                                                         

of the A[rc]) would make sure that [his] son [T.V.] would get the best care . . . .  But  



                                                                                                                                          

instead [Coe and the Arc] treated [T.V.] [and his] family like nothing."  Jack claims that  



                                                                                                                                            

he was misled by his attorney regarding the services the Arc would provide and how the  



                                                                                                                                                  

 settlement money would be used.  But Jack did not bring his motion in a timely fashion.  



                                                                                                                                             

The clerk's certificate of service on the February 15, 2013 order that is the subject of  



                                                                                                       

Jack's motion states it was distributed on February 19, 2013.  Jack filed his motion on  



                                                                                                                                       

February 27, 2014.  Under Civil Rule 60(b), a motion for relief from judgment under  



                                                                                           

 subsection (b)(1) must be brought within one year of the distribution date of the order  



           6          In   re   Estate   of   Fields,  219  P.3d   995,   1003   (Alaska   2009)   (alteration  



omitted) (quoting S.B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth   

Servs., 61 P.3d 6, 10 (Alaska 2002)).             



                                                                      -5-                                                              7089
  


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

that is the subject of the motion.  Therefore, the motion was not timely and, because it   



was not timely, we typically would not consider it.                                  

                                                                                                                     7    Reading Jack's  

                       However, "[w]e consider pro se pleadings liberally."                                                               



pleadings liberally, we conclude that he is appealing the order denying his motion that  

                                                                                                                                               



the funds be returned to him.  Thus, the question Jack presents is whether the superior  

                                                                                      



court properly denied his motion.  We conclude that the superior court did not err in  

                                                                                                                                                  



denying Jack's motion to remove the settlement funds from the trust and return them to  

                                                                                                                                                  



him.  



                       Jack's underlying motion was an attempt to state a claim against the Arc,  

                                                                                                                                              



and his requested relief was the return of the settlement proceeds. However, the Arc was  

                                                                                                                                               



not a party to the original proceedings.  We have held that "[s]ervice of process is a  

                                                                                                                                                   



                                                                                                                                                   8  

preliminary  requirement  to  a  court  obtaining  personal  jurisdiction  over  a  party."   

                                                                                                                                       



Furthermore, Alaska courts have subject matter jurisdiction over a person or entity  

                                                                                                                                           

                                                                                                              9  Alaska Civil Rule 4  

"served in an action according to the rules of civil procedure."                                                                                   

                                                                                          



discusses the requirements of service of process and requires the service of a summons  

                                                                                                                                     



and a complaint. In this case, Jack served the Arc with a copy of his motion, but this was  

                                                                                                                                               



not a complaint against the Arc and no summons accompanied it.   Although "[t]he  

                                                                                                                                           



voluntary appearance of the defendant is equivalent to personal service of a copy of the  

                                                                                                                                                

summons and complaint upon the defendant,"10 the Arc has never entered an appearance  

                                                                                                                                  



            7          Briggs  v.  City  of  Palmer,  333  P.3d  746,  747  (Alaska  2014)  (quoting  Toliver  



v.  Alaska  State  Comm'n  for  Human  Rights,  279  P.3d  619,  622  (Alaska  2012)).  



            8          Beam  v.  Adams ,  749  P.2d  366,  367  (Alaska   1988).  



            9          AS  09.05.015(a).  



            10         AS  09.05.010.  



                                                                        -6-                                                                 7089
  


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

in this action; in the hearing before Magistrate Judge Stanley, the Arc representative                                                                                                                                                                                                                    



participated as a witness only.                                                                        



                                                       Because the gravamen of Jack's motion was a claim against the Arc of                                                                                                                                                                                                                                



Anchorage and because the Arc of Anchorage was not a party to the minor's probate                                                                                                                                                                                                                                                     



case, the superior court did not have jurisdiction over the Arc and correctly denied Jack's                                                                                                                                                                                                                                                 

motion.11  



                            V.                          CONCLUSION  



                                                       We AFFIRM the superior court's denial of Jack's motion requesting that  

                                                                                                                                                                                                                                                                                                                                                      



the Arc return the trust funds to him.  

                                                                                                                                     



                            11                         We note that the proper course of action for Jack to take to obtain the                                                                                                                                                                                                                         



remedy he seeks is to file a new trust proceeding and ask the probate court to modify or                                                                                                                                                                                                                                                                     

terminate   the   existing   trust   or   to   remove   the   trustee.     See   AS   13.36.035-.060;   cf.  

AS   13.36.345   (regarding   modification   or   termination   of   irrevocable   trusts  due   to  

unanticipated circumstances); AS 13.36.360 (regarding modification or termination by                                                                                                                                                                                                                                                                       

consent); AS 13.36.076 (regarding removal of trustee).                                                                                                                                            



                                                                                                                                                                             -7-                                                                                                                                                                  7089
  

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