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R. Olson v. F. Olson (7/23/93), 856 P 2d 482
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
RAYMOND C. OLSON, )
) Supreme Court File No. S-5087
) Superior Court File
v. ) No. 3AN 90 8569 CI
FLORENCE M. OLSON, ) O P I N I O N
Appellee. ) [No. 3975 - July 23, 1993]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Reese, Judge.
Appearances: Andrew J. Fierro, Kemppel,
Huffman & Ginder, Anchorage, for Appellant.
Allen M. Bailey, Anchorage, for Appellee.
Before: Moore, Chief Justice, Rabinowitz,
Burke, Matthews and Compton, Justices.
The question presented in this appeal is whether the
appellant's loss of employment constitutes sufficient grounds for
modifying a divorce decree. We hold that it does not in this
instance, and affirm the superior court's denial of Raymond
Olson's motion to modify the decree.
I. FACTS AND PROCEEDINGS BELOW
Raymond and Florence Olson were married in July 1976 in
Anchorage. At the time of their marriage, Florence worked for
the federal civil service and Raymond worked for ARCO. Florence
retired in 1982; Raymond worked for ARCO throughout the parties'
When Florence filed for divorce in October 1990, she
was 68 years old and Raymond was 58. Her monthly gross income,
consisting of her retirement pay and her state longevity bonus,
was $600. Raymond's monthly gross income was $5,436. Both
parties claimed considerable monthly expenses.
The parties agreed to a property settlement in June
1991. They presented their agreement to Superior Court Judge
Elaine Andrews in open court on June 21, 1991. Under the
agreement, Raymond received the parties' Mercedes, their
Anchorage residence and furniture, two Washington lots, a pick-
up, a Plymouth, and a $13,500 "credit" for interim spousal
support to be applied to his amended tax returns. Raymond was
also to receive reimbursement from Florence for medical expenses
paid by Raymond and reimbursed to Florence by her insurance
carrier. Florence received the escrow account for an Anchor
Point property sale, a Plymouth, and the remainder of her
pension. The parties' equally divided Raymond's IRA, their art
and jewelry, their Washington marital property, and Raymond's
ARCO retirement, savings and investment plans.
A divorce decree, which incorporated the property
settlement, was signed on August 9, 1991. On August 28, Florence
filed a motion for attorney's fees. Raymond filed his opposition
on September 11.
In September 1991, ARCO notified Raymond that it was
terminating him as part of a reduction in force program effective
November 30. Raymond thereafter filed a supplemental opposition
to the attorney's fees motion, arguing that, due to his
termination, the relative economic situations of the parties no
longer provided any basis for an attorney's fee award. In
November, the superior court awarded Florence $5,000 in
In January 1992, Raymond moved to modify the August 9th
divorce decree, arguing that his sudden dismissal justified
modifying the property division under Civil Rule 60(b)(1),(2),(5)
and (6). This motion was denied, without comment, by Superior
Court Judge John Reese. Raymond appealed both the denial of his
motion to modify the decree and the attorney's fee award.
A. Motion to Modify.
Raymond first argues the case must be remanded because
the superior court failed to issue findings of fact when it
denied his motion to modify.1 The Civil Rules do not require the
superior court to issue findings of fact when ruling on a Rule
60(b) motion to modify. See Alaska R. Civ. P. 52(a) ("Findings
of fact and conclusions of law are unnecessary on decisions of
motions under Rules 12 and 56 or any other motion except as
provided in Rule 41(b)."). In Headlough v. Headlough, 639 P.2d
1010, 1014 (Alaska 1982), we remanded for findings when the
superior court failed to explain why it granted a Rule 60(b)
motion to modify a divorce decree. We held that such findings
were necessary in order "to enable this court to determine the
grounds upon which the trial court reached its decision." Id.
In part, we remanded because "we [were] unable to determine the
reasons for the trial court's decision to increase [the
husband's] support payments." Id.
The present case is distinguishable from Headlough
because, here, we are reviewing a denial, not a grant, of a
motion to modify the decree. In the case at bar, we can examine
the entire record, and can measure the denial against the abuse
of discretion standard without findings.
Addressing the merits, we note first that Raymond's
Civil Rule 60(b)(1) and (2) arguments are without merit. Raymond
argues that his dismissal amounts to a "surprise"sufficient to
constitute grounds for relief under Rule 60(b)(1). We read and
define the term "surprise"in light of the three other grounds
for relief under Rule 60(b)(1), to wit, "mistake, inadvertence, .
. . or excusable neglect."2 Alaska R. Civ. P. 60(b)(1). Courts
have traditionally applied this section to cover events that
occur prior to entry of judgment, such as faulty filings or
miscommunications that result in no actual knowledge of the
proceedings, and not to those events which post-date the
judgment. See generally 11 Charles Wright & Arthur Miller,
Federal Practice and Procedure, 2858 (1973 and Supp. 1993). We
will not extend Rule 60(b)(1) beyond its conventional ambit to
cover Raymond's post-decree dismissal.
Raymond's "newly discovered evidence"argument, made
under Rule 60(b)(2), fails for the same reason. In the context
of a motion for a new trial, we have held that "for any evidence
to come within the category of 'newly discovered' such evidence
must relate to facts which were in existence at the time of the
trial." Patrick v. Sedwick, 413 P.2d 169, 177 (Alaska 1966).
The same reasoning applies to motions to modify under Rule
60(b)(2). See 11 Wright and Miller, Federal Practice and
Procedure, at 2859. Raymond suggests large scale termination
decisions, such as ARCO's, are "normally made well in advance of
any announcement"and that therefore "it can be presumed" that
his termination was "in existence"at the time of the settlement
agreement on June 21, 1991. Such conjecture does not supplant
the hard fact that Raymond was not notified of his termination
until September 23, 1991, a full three months after the parties
agreed to a property division. Therefore, Rule 60(b)(2) does not
Civil Rule 60(b)(5) offers relief from judgment when
"it is no longer equitable that the judgment should have
prospective application." Alaska R. Civ. P. 60(b)(5). Only two
components of the property settlement in the present case had
prospective application; namely, the monthly escrow payments from
the Anchor Point property sale and the monthly annuities
resulting from the division and distribution of Raymond's ARCO
pension plan. The ARCO pension plan was distributed upon
Raymond's termination. Although the parties agreed to an equal
division of this asset, Raymond's monthly annuities are actually
significantly higher than Florence's as a result of an "enhanced
retirement benefit"due to his termination. It is indisputable
that the escrow payments from the Anchor Point property sale
provide Florence with significant income. However, we fail to
see how Raymond's sudden termination makes the distribution of
this asset any more inequitable than it already was when the
parties agreed to it. Given the fact that Raymond received an
"enhanced retirement benefit"upon termination, and given the
substantial assets he received as a result of the property
settlement agreement, we do not agree with his contention that
his termination placed him in an inferior economic position to
that of Florence.
Finally, Raymond's Civil Rule 60(b)(6) argument is
without merit. We have cited four factors which constitute
"extraordinary circumstances"justifying relief from a property
division under Rule 60(b)(6):
(1) the fundamental, underlying
assumption of the dissolution agreement ha[s]
been destroyed; (2) the parties' property
division was poorly thought out; (3) the
property division was reached without the
benefit of counsel; and (4) the [asset in
controversy] was the parties' principal
Clauson v. Clauson, 831 P.2d 1257, 1260 (Alaska 1992) (quoting
Lowe v. Lowe, 817 P.2d 453, 458-59 (Alaska 1991)). In Clausen,
we noted that these four factors "are not strictly necessary
conditions but, rather, are particular instantiations of the
equitable factors required to overcome the principle that, at
some point, 'litigation [must] be brought to an end.'" Id. at
1261 (quoting Lowe, 817 P.2d at 459). That is, the cited factors
are merely illustrative, and are not intended to be an exclusive
list of "extraordinary circumstances"justifying relief under
Civil Rule 60(b)(6). Raymond argues that his termination
"destroyed the underlying basis for [Raymond's] agreement to the
settlement terms." Raymond contends that the property settlement
agreement was premised on his ability to remain employed with
ARCO in order to continue making the mortgage payments on the
three pieces of real property that he agreed to take, payment of
outstanding marital liabilities, and continued contributions to
his retirement which he agreed to evenly divide with Florence.
As Raymond concedes, this premise is not stated anywhere in the
findings of fact, conclusions of law, or the divorce decree.
While we have no doubt that Raymond did not expect to be
terminated, we are hesitant to disturb a final judgment where
there is nothing in the record to support Raymond's "underlying
We affirm the superior court's denial of Raymond's
motion to modify the divorce decree.
2. Attorney's Fees.
After announcing and approving the parties' settlement
agreement, the superior court instructed Florence to move for
fees. The ensuing motion included a lengthy billing statement,
with fees and costs totalling $6,950, "exclusive of what Florence
already paid." In opposing the motion, Raymond noted his
termination and argued that awarding attorney's fees to Florence
was no longer appropriate. The superior court awarded Florence
$5,000 in attorney's fees on November 20, 1991. Raymond did not
appeal the attorney's fees award until April 13, 1992,
contemporaneous with his appeal of the denial of the motion to
Appellate Rule 204(a)(1) requires an appellant to file
a notice of appeal "within 30 days from the date shown in the
clerk's certificate of distribution on the judgment appealed
The clerk's certificate on the November 20, 1991 judgment
indicates that it was distributed to the parties on November 20,
1991. Raymond thus had until December 20, 1991 to appeal the
attorney's fees award. Raymond's motion to modify the divorce
decree, filed on January 17, 1992, did not toll or affect the
deadline for appealing the judgment awarding attorney's fees.
See Pearson v. Bachner, 503 P.2d 1401, 1402 (Alaska 1972) (Rule
60 (b) motion is not a substitute for an appeal of a judgment).
Raymond's appeal of the superior court's attorney's fees award is
therefore dismissed as untimely.
1. Raymond moved to modify pursuant to Alaska R. Civ. P.
60(b)(1), (2), (5), and (6), which read in part:
(b) On motion and upon such terms as are
just, the court may relieve a party . . .
from a final judgment, order, or proceeding
for the following reasons:
inadvertence, surprise or excusable
(2) newly discovered
evidence which by due diligence could
not have been discovered in time to move
for a new trial under Rule 59(b)
. . . .
(5) . . . it is no longer
equitable that the judgment should have
prospective application; or
(6) any other reason
justifying relief from the operation of
2. Under the doctrine of noscitur a sociis, the meaning of
questionable or doubtful words in a statute may be ascertained by
reference to the meaning of other words or phrases associated
with it. Wong Kam Wo v. Dulles, 236 F.2d 622, 626 (9th Cir.