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Morris v. Morris (12/15/95), 908 P 2d 425
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THE SUPREME COURT OF THE STATE OF ALASKA
ALBERT MORRIS, )
) Supreme Court No. S-5592
) Superior Court No.
v. ) 3AN-91-3911 CI
DONNA MORRIS, ) O P I N I O N
Appellee. ) [No. 4298 - December 15, 1995]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
John Reese, Judge.
Appearances: Elizabeth Page Kennedy,
Anchorage, for Appellant. Ernest M.
Schlereth, Law Office of Ernest M. Schlereth,
Anchorage, for Appellee.
Before: Moore, Chief Justice, Rabinowitz,
Matthews and Compton, Justices, and Bryner,
Justice pro tem.*
Albert Morris was mentally and physically incapacitated
due to a workplace injury, for which he received federal workers'
compensation benefits. As the illness progressed, he was
declared incompetent and Donna Morris, his wife, was named his
guardian. He was placed in a nursing home, his caretaking paid
by federal workers' compensation. Donna filed for divorce, and a
temporary guardian was named for Albert. Donna and the guardian
agreed to a divorce settlement. Donna received all assets,
including the family home and ninety percent of Albert's monthly
federal workers' compensation benefits. She agreed to pay all
debts. Albert retained other disability benefits and ten percent
of his monthly federal workers' compensation benefits. The
settlement was incorporated into a final divorce decree. Less
than one year later, Albert's new guardian moved under Civil Rule
60(b) to modify the judgment. The motion and a motion for
reconsideration were denied, and this appeal followed. We
I. FACTS AND PROCEEDINGS
A. Factual History
Albert and Donna were married in 1968. They have four
children. At the time the complaint was filed, two of the
children were over eighteen and out of high school, the other two
under eighteen and living with Donna. One of these children has
since reached majority and graduated from high school. The other
is still a minor and lives with Donna.
Albert worked as a federal civil service employee de-
icing airplanes at an air force base. In 1982 he was stricken
with multiple sclerosis (MS) caused or aggravated by the presence
of a substance in the de-icing solution. His mental and physical
condition gradually deteriorated. Albert sought federal workers'
compensation benefits. He started receiving benefits in 1986.
These benefits total over $2200 per month. From 1982 to 1991,
Donna cared for Albert at home. She also ran a dog grooming
business and earned extra money in the winter plowing snow using
family pickup trucks. Donna's health suffered under the strain
of caring for Albert and from the existence of carpal tunnel
syndrome in both her hands. She used Albert's benefits to pay
In April 1991 Albert was declared incompetent and
placed in a nursing home. Albert's federal workers' compensation
paid for the full cost of the nursing home. Donna was appointed
as Albert's guardian and the conservator of his estate. In re
Guardianship/Conservatorship of Albert G. Morris, No. 3AN-91-278
Ci. (Sup. Ct., April 4, 1991). In May, Donna filed for divorce.
The Office of Public Advocacy (OPA) was appointed "co-
guardian/conservator" for the limited purpose of representing
Albert's interests in the divorce. Betty Stanley of OPA assumed
these duties and employed attorneys to represent Albert in the
On Albert's behalf, Stanley entered into a "Child
Custody and Property Settlement Agreement" with Donna. Under the
settlement, the children receive a one-half interest in the
family home held in trust. Donna receives the other half
interest in the home, the dog grooming business, all family
vehicles, and ninety percent of Albert's monthly federal workers'
compensation benefits. Albert receives the remaining ten percent
of his benefits. In addition, Albert continues to receive Social
Security and Veteran's Administration (VA) benefits totaling $580
Pursuant to the settlement, Stanley signed a quitclaim
deed to the house on Albert's behalf. Donna claims that both the
dog grooming business and the home carry substantial debt. The
record does not contain a statement of the equity in either the
business or the home, nor does it indicate Donna's income. The
parties stipulated that Albert's federal workers' compensation
benefits "were accrued during the marriage and are marital
A hearing on the settlement was held before Master
Andrew Brown on August 27, 1991. Neither counsel explained the
basis for the agreement to give Donna ninety percent of Albert's
federal workers' compensation benefits. Donna and Stanley
testified, but neither explained why Donna was to receive
Donna's testimony, which primarily dealt with Albert's
illness, her reasons for wanting a divorce, and other aspects of
the divorce agreement, generally suggests that she believed she
was entitled to a generous property award because she had more or
less single-handedly provided for Albert and the children during
the ten years of his illness, and because she intended to
continue to provide for the two children remaining in the home.
She noted that Albert would not be making child support payments.
Stanley testified that she had been appointed to look
after Albert's interests in the divorce proceeding. She
indicated that she had visited Albert on July 6, and confirmed
that he suffered from progressive and terminal MS. Stanley
stated that she did not disagree with Donna's testimony. She
explained that Albert's medical care was paid by federal workers'
compensation, with extras paid by the VA. Stanley then
concluded: "At this time he only needs sufficient funds for
personal needs--ice cream cones, haircuts, clothing--just basic
daily things. His personal hygiene items are furnished by the
nursing home, so his needs are very limited at this time."
Lastly, when Stanley was asked whether she believed that the
property agreement was fair and equitable on behalf of Albert,
she replied, "yes."
Master Brown tentatively approved the agreement. He
made only two express findings. The first was that it would be
manifestly unjust to order Albert to pay any child support, given
his incapacity and lack of income.1 The second was that the
"property agreement appears fair."
The settlement was adopted and incorporated by
reference into a divorce decree entered on October 7. The court
[A]lthough no property rights are to be
adjudicated by the Court, a settlement
agreement has been signed and filed with the
Court by [Donna and Albert], the Court does
find that their said division of marital
assets, liabilities and property rights,
particularly concerning [Albert's] Federal
Workers' Compensation benefits, is a fair and
equitable division of marital property and
adequately and reasonably meets the
respective financial obligations of the
parties concerning their mutual child support
obligation as well as [Albert's] obligation,
if any, to provide rehabilitative support for
Later that month Donna remarried.
B. Procedural History
In December 1991 OPA was named sole conservator of
Albert's estate. OPA and Donna were named co-guardians. In
September 1992 Albert's new OPA conservator/co-guardian filed on
Albert's behalf a Motion for Partial Relief from Order under
Civil Rule 60(b). He sought to modify the 90%-10% division of
the federal workers' compensation benefits. The motion was based
upon allegations that certain assumptions underlying the
agreement proved to be incorrect.
The superior court denied the motion for relief and
also a motion for reconsideration.
A. Standard of Review
We will not disturb a trial court's ruling on a Rule
60(b) motion unless an abuse of discretion is demonstrated. An
abuse is demonstrated where we are "'left with the definite and
firm conviction on the whole record that the judge made a
mistake.'" Farrell v. Dome Lab., 650 P.2d 380, 384-85 (Alaska
1982) (quoting Gravel v. Alaskan Village, Inc., 423 P.2d 273, 277
B. Civil Rule 60(b)
In Allen v. Allen, 645 P.2d 774 (Alaska 1982), we
The provisions of a decree adjudicating
property rights, unlike provisions for child
support, child custody or alimony, constitute
a final judgment not subject to modification.
. . . The court has no inherent equitable
power to modify property rights that are part
of a final decree. Rather, the provisions of
a decree adjudicating property rights are
modifiable only to the extent that relief may
be obtained from any other final judgment.
Id. at 776 (citations and footnotes omitted). Hence, Albert must
seek relief from this judgment under Civil Rule 60(b). Id.
In Albert's motion under Civil Rule 60(b) for partial
relief from the trial court's judgment, he alleged that certain
assumptions underlying the agreement eventually proved to be
incorrect. He did not specify the subsection of Rule 60(b) on
which he relied. However, by citing Foster v. Foster, 684 P.2d
869 (Alaska 1984), he implied reliance on subsection (6). Rule
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 following
(6) any other reason justifying relief
from the operation of the judgment.
The only authority Albert cites regarding Rule 60(b)(6)
are cases which address the timeliness of a subsection (6)
motion, not whether facts alleged by Albert would justify relief
under a subsection (6).
The superior court implicitly ruled that uncertainty
regarding Albert's benefits was itself an assumption on which the
negotiated agreement was predicated. The parties "thought the
workers [sic] comp. claim might fold," not that they assumed that
it would. The court characterized the division of compensation
benefits as neither alimony, nor child support, nor division of
marital property. Instead, the court viewed the division as an
assignment of benefits governed by traditional contract
principles.2 In discussing the nature of the agreement and
entitlement to relief under Rule 60(b), the court concluded:
I interpret the extensive negotiations and
the careful negotiations that went on as
resulting, not in alimony, not in a division
of marital assets (because it is not a
marital asset) but in an assignment of Mr.
Morris' workers' compensation benefits. As
far as I know, those are assignable and Mr.
Morris, with the legal representatives that
he had at the time, was empowered to assign
those benefits. He basically assigned them
for the economic benefit of the family and he
did it for common and as far as I know,
perfectly legitimate purposes of maximizing
the resources that would be available to the
family. [While] I have sympathy for Mr.
Morris' predicament, you cannot override the
requirements of the law. Under 60(b), the
only thing that I see there that could
possibly apply would be a claim that a
property division of this type, an assignment
of this type, might be void for violating
public policy. Nobody has made that
argument. . . . I believe that it is not
void. I believe that it is an enforceable
(Emphasis added.) The superior court's ultimate conclusion was
that no factual or legal basis for Albert's claim had been
Despite his motion under Rule 60(b) in the superior
court, in his Brief of Appellant Albert has not argued to this
court that the superior court's denial of the Rule 60(b) motion
was itself an error.3 Rather, Albert has argued the merits of
the underlying substantive issues, just as though this was an
original appeal. As we have stated, "Civil Rule 60 is not a
substitute for a party failing to file a timely appeal; nor does
it allow relitigation of issues that have been resolved by the
judgment." Burrell v. Burrell, 696 P.2d 157, 163 (Alaska 1984).
Donna argues in her Appellee's Brief that Albert did
not demonstrate to the superior court any basis for relief under
Rule 60(b). In his Reply Brief Albert merely mentions Rule
60(b). He does not present to this court, even belatedly, any
factual allegations which would support relief under the
provisions of Rule 60(b). He has not shown that any facts were
presented to the superior court from which it could have
concluded that he was entitled to such relief, or from which we
could conclude that the superior court erroneously held he was
not entitled to such relief.
Albert has not demonstrated that the superior court
abused its discretion in denying his motion for partial relief
under Civil Rule 60(b). The judgment of the superior court is
*Sitting by assignment made pursuant to article IV, section
16 of the Alaska Constitution.
1 It is not clear on what basis Master Brown concluded
that Albert lacked income. His federal workers' compensation,
social security, and veteran's benefits totalled approximately
$2800 per month. In addition, his basic needs for food and
shelter were provided by federal workers' compensation.
2 The parties and the court each use different legal
labels to describe the assignment of 90% of Albert's federal
workers' compensation benefits to Donna.
Albert characterizes the assignment as either alimony
or child support. He correctly argues that this assignment would
be invalid under either characterization. The assignment cannot
be characterized as alimony, because it is perpetual. Were it
alimony, it would not be prospectively enforceable due to Donna's
remarriage. Voyles v. Voyles, 644 P.2d 847, 848 (Alaska 1982).
Further, we have repeatedly stated a preference for property
division over alimony. Hilliker v. Hilliker, 755 P.2d 1111, 1112
(Alaska 1988). It cannot be characterized as rehabilitative or
reorientation alimony, as it does not relate to Donna's earning
ability, financial situation, or job plans. Davila v. Davila,
876 P.2d 1089, 1094 (Alaska 1994). The amount to be paid by
virtue of the assignment was not calculated under the child
support guidelines of Civil Rule 90.3. Therefore, it is not
enforceable as child support. Cox v. Cox, 776 P.2d 1045 (Alaska
Donna describes the assignment as a division of marital
property. In the settlement, the parties stipulated that the
benefits "were accrued during the marriage and are marital
property." Albert correctly counters that his federal workers'
compensation benefits that accrue after the divorce are his
separate property. See Miller v. Miller, 739 P.2d 163, 165
The superior court characterized the assignment as a
contractual assignment of Albert's future federal workers'
compensation benefits. The parties to a divorce may make a
binding division of separate or marital property. See Dowling v.
Dowling, 679 P.2d 480, 483 n.7 (Alaska 1984); In re Estate of
Kuhns v. Kuhns, 550 P.2d 816, 819 (Alaska 1976). Arguably the
settlement was an assignment of future separate property rights.
Indeed, the superior court characterized the assignment as a
contractual assignment of Albert's future federal workers'
compensation benefits. The erroneous description of the benefits
as marital property would not preclude the superior court from
correctly characterizing the benefits as separate property
contractually assigned. Similarly, while the assignment may have
served general alimony or child support purposes, it has none of
the other indicia of these forms of relief. The superior court's
analysis of the agreement is plausible.
3 Normally an argument that is not raised or is
inadequately briefed is deemed waived. See Adamson v. University
of Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991).