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First Nationall Bank of Anchorage v. Office of Public Advocacy and Schlereth (9/8/95), 902 P 2d 330
Notice: This opinion is subject to formal 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, telephone (907) 264-0607, fax (907) 276-
THE SUPREME COURT OF THE STATE OF ALASKA
THE FIRST NATIONAL BANK OF )
ANCHORAGE, Trustee, )
) Supreme Court No. S-6599
) Superior Court No.
) 3AN-85-460 P/G
) O P I N I O N
STATE OF ALASKA, OFFICE OF )
PUBLIC ADVOCACY, Guardian, ) [No. 4251 - September 8, 1995]
and ERNEST M. SCHLERETH, )
Guardian ad Litem, )
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Rene Gonzalez, Judge.
Appearances: John R. Beard, Anchorage, for
Appellant. Ernest M. Schlereth, Law Office
of Ernest M. Schlereth, Anchorage, for
Before: Moore, Chief Justice, Rabinowitz,
Compton and Eastaugh, Justices. [Matthews,
Justice, not participating].
MOORE, Chief Justice.
This case arises out of an inter vivos revocable trust
established by F.H. The Office of Public Advocacy (OPA), acting
as F.H.'s guardian, obtained a court order removing First
National Bank of Anchorage (First National) as trustee. First
National then moved for relief from judgment under Alaska Civil
Rule 60(b), arguing, inter alia, that the superior court's order
was void for want of jurisdiction. First National appeals the
superior court's denial of its Civil Rule 60(b) motion. We
II. FACTS AND PROCEEDINGS
In 1980 F.H. established a revocable inter vivos trust,
naming herself as lifetime beneficiary and First National as
trustee. The trust included the following provision: "Any
Trustee at any time acting hereunder may at any time be removed
by the Trustor from its office as Trustee hereunder by delivery
to it of a written instrument, signed and acknowledged by the
After F.H. was diagnosed with senile dementia in 1985,
a Pioneer Home social worker filed a Petition for Appointment of
Guardian and Conservator.1 The superior court then appointed OPA
as F.H.'s guardian. However, the court declined to appoint OPA
as conservator at that time, commenting that "[t]he issue of
conservator should be held in abeyance until hearing on the
matter based on the probable impact of the conservator's
appointment upon the Trustee's obligations." The court
subsequently granted First National's unopposed motion to dismiss
the petition for conservatorship.
In October 1992 OPA moved for clarification of the
court's 1985 order appointing OPA guardian. Specifically, OPA
wished to clarify whether the court's order authorized OPA to
exercise the powers vested in F.H. under the trust document.
Although attorney Dan Coffey entered an appearance on behalf of
First National, First National did not file an opposition.
The court's November 1992 clarification order provided:
IT IS HEREBY ORDERED that the previous
Order Appointing Guardian is hereby clarified
to reflect the original intent thereof in the
1. The Office of Public Advocacy is
appointed as full guardian with all the
powers and duties set out in AS 13.26.090
through 13.26.150, including AS
2. The Office of Public Advocacy has
the power to deal with the [F.H.] Trust,
including the trustee, First National Bank
of Anchorage, as the ward (trustor) would
have if she were not incapacitated. (This
power does not include the right to change
the testamentary beneficiary designation
under the trust, whereby The Alaska Society
for the Prevention of Cruelty to Animals,
Inc. would receive the corpus of the trust in
the event of the ward's demise).
3. In the event that the Office of
Public Advocacy or any substituted guardian
wishes to terminate the [F.H.] trust or the
current trustee's duties, the court appointed
guardian will obtain court approval therefor
In August 1993 the court visitor appointed to review
F.H.'s case3 recommended that Community Advocacy Project of
Alaska (CAPA), a private non-profit guardianship organization,
take over guardianship duties from OPA. The superior court
scheduled a hearing on this proposed transfer and appointed Dan
Coffey to appear as F.H.'s attorney and an OPA social worker to
appear as court visitor. Coffey moved to withdraw as F.H.'s
court-appointed attorney and Ernest Schlereth was appointed in
his place. Because of F.H.'s severe dementia, the court
subsequently appointed Schlereth to serve as F.H.'s guardian ad
litem at the hearing.
At the January 1994 hearing, the court visitor
recommended transferring guardianship to CAPA. Schlereth
expressed his concern that the proposed transfer might
unnecessarily deplete the trust funds because both CAPA and First
National charged fees for their services. The court stated that
it was unwilling to proceed without more information concerning
F.H.'s assets. It directed Schlereth to prepare an order
requesting First National to provide the necessary information.4
The court then continued the hearing.
On June 15, 1994, OPA moved the court for an order
terminating First National as trustee and appointing OPA as
successor trustee. This motion was served by mail on First
National trust officer Jill Reitz and attorney Dan Coffey. On
June 30 the superior court entered the following order:
IT IS HEREBY ORDERED that the Motion for
Order Terminating the First National Bank as
Trustee of the [F.H.] Trust filed by the
guardian ad litem is hereby GRANTED.
IT IS FURTHER ORDERED that the Public
Guardian, through the assistant public
guardian assigned to the respondent's case,
Kelly Young, is hereby authorized to give
notice to the First National Bank of
Anchorage of its termination as trustee as
provided under the trust instrument. The
Office of Public Advocacy is hereby appointed
as successor trustee under the trust. Any
changes in the trust instrument effecting
final disposition, or other changes in the
terms of the trust instrument shall be made
only upon prior written court approval. The
Office of Public Advocacy may utilize the
services of Kemper Securities in order to
invest the trust funds which charges no
annual fee for its investment services.
In a July 5th letter, OPA sent First National a copy of the June
30th order and informed First National that its duties as trustee
would terminate in twenty days. OPA also requested an
On July 26 First National moved for relief from
judgment under Civil Rule 60(b). It argued (1) that the June
30th order was void for want of jurisdiction; (2) that OPA did
not have the statutory authority to serve as trustee; (3) that
OPA's duties as F.H.'s guardian would conflict with its duties as
trustee; and (4) that there was no "cause" to remove First
National as trustee.
On July 27 OPA moved, ex parte, for an order to show
cause why First National should not be held in contempt for
failing to comply with the court's June 30th order.5 The court
granted OPA's request for a show cause hearing.
On July 28 OPA moved to quash First National's Rule
60(b) motion because the attorney who had filed the motion, John
Beard, had not entered an appearance on behalf of First National.
First National opposed.
Before the court had ruled on its motion to quash, OPA
filed an opposition to First National's Rule 60(b) motion. First
National received this opposition on August 8. On August 9, the
court entered two separate orders: (1) the court denied First
National's Rule 60(b) motion; and (2) the court granted OPA's
motion to quash First National's Rule 60(b) motion.
On August 19, First National filed its response to the
court's order to show cause. In this response, First National
again presented its objections to the court's June 30th order.
At the August 23rd hearing, the court heard argument concerning
the propriety of its June 30th order terminating First National
as trustee, and then reaffirmed its decision.
This appeal followed.
In this appeal, First National asserts that the
superior court erred in denying its motion for relief from
judgment. Alaska Civil Rule 60(b) provides:
(b) Mistakes -- Inadvertence -- Excusable
Neglect -- Newly Discovered Evidence -- Fraud
-- Etc. On motion and upon such terms as are
just, the court may relieve a party or a
party's legal representative from a final
judgment, order, or proceeding for the
(1) mistake, inadvertence, surprise or
(2) newly discovered evidence which by
due diligence could not have been discovered
in time to move for a new trial under Rule
(3) fraud (whether heretofore
denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an
(4) the judgment is void;
(5) the judgment has been satisfied,
released, or discharged, or a prior judgment
upon which it is based has been reversed or
otherwise vacated, or it is no longer
equitable that the judgment should have
prospective application; or
(6) any other reason justifying relief
from the operation of the judgment.
In its motion, First National asserted that it was entitled to
relief from judgment under subsections (b)(1), (b)(4) and (b)(6).
A court's decision denying a Rule 60(b) motion will be
reversed upon a showing of abuse of discretion. Lovell v.
Lovell, 645 P.2d 151, 152 (Alaska 1982). Abuse of discretion
will be found where this court is "left with a definite and firm
conviction, after reviewing the whole record, that the trial
court erred in its ruling." Id.
A. First National Is Not Entitled to Relief from
Judgment Under Civil Rule 60(b)(4).
A party is entitled to relief from judgment under Civil
Rule 60(b)(4) when the judgment is void. First National contends
that the superior court's jurisdiction over matters concerning
trusts may be invoked only by the initiation of proceedings under
AS 13.36.035-.060. Alaska Statute 13.36.060 provides:
Proceedings under AS 13.36.035 are initiated
by filing a petition in the court and giving
notice under AS 13.06.110 to interested
parties. The court may order notification of
additional persons. A decree is valid as to
all who are given notice of the proceeding
though fewer than all interested parties are
Alaska Statute 13.06.110 requires the petitioner to give fourteen
days advance notice of the time and date of the hearing.
Asserting that a trustee is an "interested person" under AS
13.06.050(20),6 First National concludes that the court's June
30th order is void because it was entered without the filing of a
petition under AS 13.36.035, and without the notice of hearing
required under AS 13.06.110. This argument is unpersuasive.
Alaska Statute 13.36.035(a) vests the superior court
with exclusive jurisdiction over proceedings initiated by
interested parties concerning the internal affairs of trusts.
This includes proceedings to remove a trustee. AS
13.36.035(a)(1). However, AS 13.36.035(b) provides:
The management and distribution of a trust
estate, submission of accounts and reports to
beneficiaries, payment of trustee's fees and
other obligations of a trust, acceptance and
change of trusteeship, and other aspects of
the administration of a trust shall proceed
expeditiously consistently with the terms of
the trust, free of judicial intervention and
without order, approval or other action of
any court, subject to the jurisdiction of the
court as invoked by interested parties or as
otherwise exercised as provided by law.
(Emphasis added.) Thus a person authorized to remove a trustee
under the terms of the trust may do so without application to the
court. See Restatement (Second) of Trusts ' 107 (1959) (trustee
may be removed either by the proper court or by the person, if
any, who is authorized under the terms of the trust to remove the
In this case, under the terms of the trust, F.H. had
the power to remove the trustee at any time by delivering a
signed and acknowledged document to the trustee. The trust
further provided that such removal would be effective twenty days
after delivery of the document. The court's November 1992 order,
clarifying the scope of OPA's guardianship, explicitly provided
that OPA had the authority to terminate the trust or remove the
trustee subject to court approval.7 On this record, we conclude
that OPA's motion was properly raised in the course of the
guardianship proceedings and that the procedures set forth in AS
13.36.060 do not apply.
In any case, First National was afforded both notice
and an opportunity to be heard. As OPA points out, First
National was served with a copy of OPA's motion to remove First
National as trustee on June 16, 1994. First National had
thirteen days to respond to the motion - ten days plus three days
for service by mail. Alaska R. Civ. P. 77(c); Alaska R. Civ. P.
6(c). First National also had an opportunity to request oral
argument. Alaska R. Civ. P. 77(e)(1). However, First National
took no action within the required time frame, and the court
entered the order as unopposed fourteen days after it was filed.
For the foregoing reasons, First National is not
entitled to relief from judgment under subsection (b)(4).
B. First National Is Not Entitled to Relief from
Judgment Under Civil Rule 60(b)(1) or 60(b)(6).
First National also cited both subsection (b)(1) and
subsection (b)(6) in its motion for relief from judgment. See
Alaska R. Civ. P. 60(b)(1) (authorizing court to grant relief
from judgment for mistake, inadvertence, surprise or excusable
neglect); Alaska R. Civ. P. 60(b)(6) (authorizing court to grant
relief from judgment for "any other reason justifying relief from
the operation of the judgment"). However, in its motion, First
National failed to identify any facts justifying relief from
judgment under either subsection. On this record, the superior
court properly denied First National's motion for relief from
judgment under subsections (b)(1) and (b)(6).
C. The Superior Court Did Not Err by Denying First
National's Rule 60(b) Motion Without Making Written
On appeal, First National contends that the superior
court erred in denying its Rule 60(b) motion because the court
failed to provide any written statement explaining its decision.
According to First National, the superior court "simply did not
want to be vexed by [the] vexing questions" raised by the motion
and OPA's opposition. We disagree.
In denying a motion for relief from judgment, a court
is normally not required to enter written findings of fact and
conclusions of law. See Olson v. Olson, 856 P.2d 482, 483-84
(Alaska 1993) (holding that the civil rules "do not require the
superior court to issue findings of fact when ruling on a Rule
60(b) motion"). On the record presented in this case, the
superior court did not err in summarily denying First National's
D. The Superior Court's Premature Denial of First
National's Rule 60(b) Motion Was Harmless Error.
First National also argues that the court improperly
denied its Rule 60(b) motion before it was ripe. Under Civil
Rule 77(d), a moving party has three days from the date an
opposition is served to file a reply. First National's attorney
received OPA's opposition to First National's motion on August 8.
Because First National had until August 11 to file a reply, the
court's August 9th denial was premature. However, because First
National failed to demonstrate any basis for relief from judgment
in its motion, this error is harmless.8
First National has failed to establish that it is
entitled to relief from judgment under Civil Rule 60(b). Under
the terms of the trust, F.H. had the authority to remove the
trustee on written notice. As F.H.'s guardian, OPA was
authorized to exercise this power subject to court approval. On
application to the court, OPA obtained court approval of its
decision to remove First National as trustee. On this record,
the court's June 30th order removing First National as trustee of
the F.H. trust is valid. None of the grounds asserted for
obtaining relief from judgment apply in this case.
1 The guardianship statute authorizes a guardian to make
medical, placement and other related decisions. AS 13.26.150.
This includes financial decisions in cases where no conservator
has been appointed. AS 13.26.150(c)(6). The conservatorship
statute authorizes a conservator to handle a ward's financial
affairs. AS 13.26.280.
2 As noted in footnote 1, AS 13.26.150(c)(6) authorizes a
guardian to make certain financial decisions for a ward:
[I]f a conservator for the estate of the ward
has not been appointed, the guardian may
receive money and property deliverable to the
ward and apply the money and property for
support, care, and education of the ward;
however, the guardian may not apply the
ward's money or property for the services as
guardian or for room and board which the
guardian, or the guardian's spouse, parent,
or child has furnished the ward unless,
before payment, the court finds that the ward
is financially able to pay and that the
charge is reasonable; notice of a request for
payment approval shall be provided to at
least one relative of the ward if possible;
the guardian shall exercise care to conserve
any excess money or property for the ward's
3 See AS 13.26.118(a) (providing that a guardian or court-
appointed visitor must evaluate the ward's situation and make
recommendations on an annual basis).
4 The court's order provided, in part:
Upon a review hearing to determine
whether guardianship/conservatorship can be
transferred from the Office of Public
Advocacy to Community Advocacy Project of
Alaska, Inc., the current
guardian/conservator has requested that
before the Office of Public Guardian consent
to such transfer, more information would be
required from the trust department of First
National Bank of Anchorage, acting as trustee
of the [F.H.] Revocable Trust, so that the
public guardian may have adequate and
complete information concerning the
respondent's assets and handling of her
Once the Office of Public Advocacy has
obtained the information it requests from the
First National Bank of Anchorage trust
department, a hearing may be scheduled where
a determination may be made as to the
possible transfer of the
guardianship/conservatorship roles to
Community Advocacy Project of Alaska, Inc.,
and also considering the possible transfer of
the trusteeship's role to Community Advocacy
Project of Alaska, Inc., as is in the best
interests of the respondent.
The First National Bank of Anchorage
shall cooperate with the public guardian as
the duly authorized representative of the
respondent in supplying in a timely fashion
the information requested concerning the
records and accounting of the trust as it is
also required to do pursuant to paragraph 7
of the trust instrument.
5 In a supporting affidavit, assistant public guardian
Kelly Young stated that First National intended to continue
charging trust fees until two certificates of deposit, acquired
by the bank for the trust, had matured. Young also stated that
First National had failed to transfer the trust's other assets
within the required time frame.
6 AS 13.06.050(20) provides:
"interested person" includes heirs, devisees,
children, spouses, creditors, beneficiaries
and any others having a property right in or
claim against a trust estate or the estate of
a decedent, ward or protected person which
may be affected by the proceeding; it also
includes persons having priority for
appointment as personal representative, and
other fiduciaries representing interested
persons; the meaning as it relates to
particular persons may vary from time to time
and must be determined according to the
particular purposes of, and matter involved
in, any proceeding.
7 We note that such a provision is consistent with the
powers generally entrusted to guardians. See generally 39 Am.
Jur. 2d Guardian and Ward ' 78 (observing that guardians may
often act as ward's agent and representative in matters relating
to trust property). We also note that First National had an
opportunity to challenge the propriety of allowing OPA to
exercise the powers vested in F.H. under the trust document but
failed to do so. In fact, the record indicates that the
provision requiring court approval was added at First National's
request. Court approval in this context cannot reasonably be
read to mean a proceeding under AS 13.36.060.
8 Finally First National argues that the superior court
erred in granting OPA's motion to quash its motion for relief
from judgment. Alaska Civil Rule 11 provides that a pleading
which is not properly signed by an attorney of record "shall be
stricken unless it is signed promptly after the omission is
called to the attention of the pleader or movant."
First National's July 26th Rule 60(b) motion was filed
by John Beard who had not entered an appearance in the case.
John Beard formally entered an appearance on August 5 when Dan
Coffey withdrew. The court apparently entered its August 9th
order quashing First National's 60(b) motion before receiving
Beard's entry of appearance in chambers.
Because the court denied First National's Rule 60(b)
motion, we need not consider whether the court erred in
simultaneously striking this motion from the record under Civil
Rule 11. On this record, any error is harmless.