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Conger v. Conger (12/19/97), 950 P 2d 119
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, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
CHERRY CONGER, )
) Supreme Court No. S-8052
) Superior Court No.
v. ) 4FA-84-2462 CI
ARTHUR TERRY CONGER, ) O P I N I O N
Appellee. ) [No. 4920 - December 19, 1997]
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Richard D. Savell, Judge.
Appearances: Alan J. Hooper, Law Office of
Alan J. Hooper, Fairbanks, for Appellant. Bonnie J. Coghlan,
Fairbanks, for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
Terry Conger sought and was granted modification of a
1985 custody agreement. Cherry Conger appeals, seeking to reverse
the superior court's denial of her Civil Rule 60(b) Motion to Set
Aside Order Modifying Custody, its denial of her Motion to Accept
Late Filed Opposition, and its Order Modifying Custody. We
II. FACTS AND PROCEEDINGS
In 1980 Cherry Diane Treat and Arthur "Terry"Conger were
married in Phoenix, Arizona. In 1981 Cherry gave birth to their
only child, Candy Diane. Cherry and Terry were divorced in 1985.
Pursuant to a child custody and support agreement, Cherry was
awarded custody of Candy. Terry agreed to pay Cherry $300 per
month in child support. After the divorce Cherry lived in both
Fairbanks and Arizona. She now lives in Phoenix, while Terry lives
According to Terry's affidavit, Candy lived with him in
Fairbanks from September 1989 through May 1992. Candy then lived
with Cherry in Fairbanks until February 1993. She lived with
Cherry's mother from February 1993 until April 1996. Candy has
been living with Terry and his present wife in Fairbanks since
In January 1997 Terry filed, in Fairbanks superior court,
motions to modify custody, to restrain removal of Candy from
Alaska, and to seal the file. He also filed supporting memoranda,
affidavits, and related papers. On January 8 Cherry was served
with these papers, by certified mail, in Phoenix. On January 16
Terry filed a motion for expedited consideration of his motion to
modify custody, serving it on Cherry by express mail addressed to
Cherry in Phoenix.
Cherry retained Fairbanks counsel, who appeared on her
behalf on January 17. On January 21 Cherry's counsel filed a non-
opposition to the motion for an order restraining removal of Candy
from the State, stating that "[Cherry] realizes that her daughter
wants to remain in Fairbanks during the remainder of the school
year and is respectful of that wish." On the same day Cherry's
counsel filed an opposition to the motion for expedited
On January 23 Cherry and Terry, through counsel, filed a
Stipulation and Order which recited that they "stipulate[d] and
agree[d] that Plaintiff Cherry Conger may have an additional
fifteen (15) days within which to file her Opposition to
Defendant's Motion to Modify Custody." The superior court signed
the order on January 24. It was filed and served on counsel on
January 27. The Stipulation and Order did not state on what date
the additional fifteen days was to commence running. [Fn. 1]
On February 5 the court denied the motion for expedited
consideration and granted the unopposed motion to seal the file.
On February 10 the court entered an order granting
Terry's motion to modify the custody agreement and ordering Cherry
to pay fifty dollars per month in child support payments. [Fn. 2]
The order was filed on February 11 and served on counsel February
On February 10, before learning of the order granting
modification, Cherry attempted to file her Opposition to Motion to
Modify Custody. The court clerk's office refused to file the
opposition, stating that "[y]our Oppo to Mtn to Modify cannot be
considered unless you file a Mtn to accept late filing."
On February 19 Cherry filed a motion pursuant to Rule
60(b) to set aside the order modifying custody, and a motion to
accept a late-filed opposition. In support of the motions,
Cherry's counsel stated that he had assumed the fifteen-day
extension for filing began on January 27, the day the order
granting the extension was stamped and filed, which he refers to as
the "effective date"of the order. If the fifteen-day extension
had begun to run from January 27, Cherry's opposition would have
been due on February 11, one day after Cherry attempted to file her
The superior court denied Cherry's motion to set aside
the order and refused to accept her "late-filed"opposition. The
court stated: "It is disingenuous [to] claim that the agreement to
extend runs from an unknown date in the future when a judge signs
off. The opposition was 9 days late."
A. Standard of Review
We review an order denying a Civil Rule 60(b) motion to
determine if the trial court abused its discretion. See Benedict
v. Key Bank of Alaska, 916 P.2d 489, 491 (Alaska 1996). Reversal
of the trial court "is justified only if this court concludes the
trial court was clearly mistaken." Grothe v. Olafson, 659 P.2d
602, 611 (Alaska 1983).
B. Did the Superior Court Abuse Its Discretion in Denying
Cherry's Civil Rule 60(b) Motion to Set Aside the Order Modifying
Custody and Accept Her Late-Filed Opposition?
Pursuant to Alaska Civil Rule 60(b)(1), Cherry moved to
set aside the Order Modifying Custody and to accept her late-filed
Civil Rule 60(b)(1) provides: "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 reasons: (1) mistake, inadvertence, surprise or excusable
Cherry argues that her assumption that the fifteen-day
extension began on January 27 was a mistake, and that Rule 60(b)(1)
provides the remedy. [Fn. 3] She states that "[t]he Stipulation
and Order that the parties presented to the Court was not a model
of clarity. It left ambiguous the question as to what date the 15
days was to be added." Terry does not address whether it was
excusable neglect for Cherry to assume that the fifteen-day
extension commenced running from the date the order was stamped and
filed, and not from the date it was signed or from the date it was
Cherry's opposition may have been late, depending on what
date the fifteen additional days commenced to run. [Fn. 4] Cherry
was served with the moving papers on January 8. Pursuant to
Rule 77(c), and the notice served on Cherry, she had ten days
following service to file her opposition to the motion to modify
custody. However, on January 23 Cherry and Terry stipulated and
agreed that Cherry would have an "additional"fifteen days within
which to file her opposition. It was "SO ORDERED"by the court on
January 24. The order was filed and served on the parties on
January 27. Arguably, Cherry was to have filed her opposition as
early as February 4, fifteen days after the original due date of
January 20. At the latest, Cherry had until February 11 to file
her opposition, fifteen days after the court's order was filed and
served on the parties. See Alaska Civil Rule 58.1(a)(2) ("The date
of entry of a written order not preceded by an oral order is the
date the written order is signed unless otherwise specified in the
order."); Johnson v. Siegfried, 838 P.2d 1252, 1255 n.4 (Alaska
1992) ("Written orders are considered effective on the date they
are entered, that is, the date on which the order is signed.").
Cherry, however, filed her opposition on February 10.
We conclude that Cherry's possible miscalculation of the
date on which the "additional"fifteen-day period expired
constituted excusable neglect. [Fn. 5] The Kansas Supreme Court
addressed a similar situation in Jenkins v. Arnold, 573 P.2d 1013
(Kansas 1978). In Jenkins, counsel miscounted the time in which he
could file an answer and a default judgment was entered against his
client. The court stated:
[w]e are inclined to agree with counsel that a
proper showing was made that the default was not the result of
"inexcusable neglect". . . . The failure of counsel to answer
would appear to be that type of excusable inadvertence or neglect
common to all who share the ordinary frailties of mankind.
Id. at 1016. Other courts have similarly held that a party's
failure to timely file constitutes excusable neglect. See
Investment Fin. Group, Inc. v. Chem-Nuclear Sys., Inc., 815 F.2d
391, 400 (6th Cir. 1987) (holding that because the party "offered
a credible explanation for the delay that did not exhibit disregard
for the judicial proceedings,"filing their answer late was
excusable neglect); United Coin Meter v. Seaboard Coastline R.R.,
705 F.2d 839, 845 (6th Cir. 1983) (holding that a misunderstanding
as to when the extension was to begin, which resulted in a late
filing and a default judgment, was excusable neglect because the
record did not show "that the default occurred as the result of
Cherry was an out-of-state party who promptly retained
counsel in Fairbanks. Counsel promptly entered his appearance on
Cherry's behalf and filed a number of papers addressing the various
motions filed by Terry. Cherry's prompt participation in the
proceedings, and the fact that her opposition was at most six days
late, if late at all, support the conclusion that her arguable
tardiness showed neither a disregard for the proceedings nor a
willful failure to proceed. Further, in view of Cherry's
willingness to abide by the status quo until Candy's school term
ended four months later, no need for haste was apparent. The
court's precipitous action in granting Terry's motion to modify
custody is inexplicable. It also nearly guaranteed a time-
consuming appeal on a purely technical issue.
Resolution of a custody dispute should not reach its
final conclusion in a manner that effectively precludes one party
from presenting his or her case. Courts must recognize that the
issue is the best interests of the child, or children, and not
merely a determination of the private rights of nominal parties.
Moreover, it is critical that the court be as fully informed as
possible when determining the best interests of a child.
We conclude that the superior court abused its discretion
by not granting Cherry's Rule 60(b) motion. We REVERSE the
superior court's denial of Cherry's Rule 60(b) motion to set aside
the order modifying custody, direct the superior court to accept
her late-filed opposition, and REMAND the case for further
proceedings on Terry's motion to modify custody.
Counsel's failure to specify the date the fifteen-day
extension was to commence running, or the date that the opposition
was due, resulted in unnecessary confusion and litigation. The
appeal that resulted from counsel's oversight should serve as an
example of what litigants should not do when seeking an extension.
Rather, they should specify when the additional time begins to run,
and/or the due date of the document, given the time extension.
The Order reads:
Defendant having moved this court to
modify the custody, visitation and support in the above entitled
matter, this court having considered the matter and being duly
IT IS HEREBY ORDERED that the terms of
the Decree of Divorce entered July 15, 1985, be modified to provide
that Defendant shall have primary physical custody of the parties'
minor daughter, Candy Diane Conger, subject to rights of visitation
IT IS FURTHER ORDERED that Plaintiff
shall pay Defendant child support in the amount of $50.00 per month
through the Child Support Enforcement Division. Support shall
continue while Candy Diane Conger is 18 years old if she is (1)
unmarried, (2) actively pursuing a high school diploma or
equivalent level of technical or vocational training, and (3)
living as a dependent with the obligee parent.
Although Cherry labels her time miscalculation as a "mistake,"
the proper analysis under Rule 60(b)(1) is whether the time
miscalculation was excusable neglect.
Neither the court, in its order, nor the parties, in their
briefing, venture to opine when Cherry was to have initially filed
her opposition, from what date the "additional"15 days was to have
commenced running, or on what date the 15-day period expired.
Cherry was served with Terry's motion on January 8. She had 10
days within which to file her opposition. It would have been due
January 18, but since that was a Saturday, it was due Monday,
January 20. If the "additional"15-day period commenced running
the following day, it expired February 4. If it commenced on
January 23, the day the Stipulation and Order was signed by the
parties, it expired on February 7. If it commenced on January 24,
the date the court signed the order granting the "additional"time,
it expired February 10. If it commenced on January 27, the date
the order was filed and served on the parties, it expired
February 11. An opposition filed February 10 was either 6 days
late, 3 days late, on time, or 1 day early. There would appear to
be no scenario which would result in the opposition being "9 days
In light of our Rule 60(b) resolution, we need not address the
correctness of the Order Modifying Custody.