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Song v. Song (1/8/99), 972 P 2d 589
Notice: This opinion is subject to 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
KYONG TAEK SONG, )
) Supreme Court No. S-8074
) Superior Court No.
v. ) 3AN-95-6821 CI
HYUN JOO SONG, ) O P I N I O N
Appellee. ) [No. 5061 - January 8, 1999]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Peter A. Michalski, Judge.
Appearances: Kenneth Kirk, Esq., Anchorage,
for Appellant. Michael D. White, Hartig, Rhodes, Norman, Mahoney
& Edwards, P.C., Anchorage, for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
Shortly after Kyong Taek Song (Mr. Song) and Hyun Joo
Song (Ms. Song) obtained a decree of dissolution, Mr. Song moved to
enforce the stipulated property settlement incorporated in the
decree. Ms. Song, alleging fraud, responded by moving for relief
under Alaska Civil Rule 60(b). After a brief hearing, the court
granted Ms. Song's motion for Rule 60(b) relief and issued an
amended divorce decree modifying the original property agreement.
Mr. Song appeals, arguing that the court erred in setting aside the
dissolution decree, in entering a modified decree, and in awarding
Ms. Song prevailing-party attorney's fees. We hold that the court
did not abuse its discretion in vacating the dissolution decree on
the ground of fraud but that it did err in re-dividing the marital
property without giving Mr. Song advance notice or an opportunity
for a hearing on the property division issues. This conclusion, in
turn, requires us to partially vacate the attorney's fee award.
I. FACTS AND PROCEEDINGS
Kyong Taek Song and Hyun Joo Song married in Korea in
1987. At that time, Mr. Song already resided in Alaska; Ms. Song
moved to Alaska in 1989. Although both of the Songs speak and
write some English, neither is fluent; both need to have legal
information translated into Korean.
In 1995, the Songs consulted Alan Lee, a friend of theirs
who works as a translator, about obtaining a dissolution of their
marriage. In August 1995, Lee drafted a dissolution petition for
the Songs. Eventually, in October 1995, the Songs had an amended
petition drafted, apparently by an attorney retained by Mr. Song.
Lee accompanied Mr. Song to a consultation with the attorney and
notarized the Songs' signatures on the petition.
The petition listed and distributed three assets: the
South Seas Hotel, valued at $900,000, owned jointly, and awarded to
Ms. Song; a fourplex apartment building, valued at $130,000, owned
jointly, and awarded to Mr. Song; and a 1993 van, valued at
$23,000, and owned by and awarded to Mr. Song. It also listed
three joint debts and made Ms. Song responsible for all three:
business debts for the South Seas Hotel of $30,000; personal loans
for the South Seas Hotel of $100,000; and credit card debt of
Attached to the petition was a document, signed by both
parties, entitled "Other Agreements,"which made Ms. Song
responsible for all marital debt, required her to pay Mr. Song
$200,000 in three payments over a two-year period to buy out his
interest in the South Seas Hotel, and purported to give Mr. Song
the right to immediate possession of the hotel if Ms. Song failed
to comply with this payment provision.
Master Andrew Brown held a hearing on the Songs' petition
on October 31, 1995. Lee translated at the hearing. The Songs
indicated that they understood the petition's provisions. Ms. Song
said that, pursuant to the agreement, she would pay Mr. Song the
first $50,000 of the South Seas Hotel payment that evening. Master
Brown recommended that the petition be approved. On November 3,
Superior Court Judge Peter A. Michalski signed a dissolution decree
that incorporated the terms of the property agreement, as set out
in the petition.
On January 3, 1996, Mr. Song moved to enforce the
dissolution decree's property order, claiming that Ms. Song had
failed to make the first $50,000 South Seas Hotel payment as their
agreement provided. He also alleged that Ms. Song was having
problems with alcohol abuse that were causing her to neglect the
hotel. He requested that the court allow him to repossess the
hotel immediately. On January 18, Mr. Song withdrew his motion,
indicating that he and Ms. Song had "reached a settlement which
renders this motion practice moot."
On May 21, Mr. Song filed a renewed motion to enforce the
property agreement, alleging that Ms. Song still had not paid him
for his interest in the South Seas Hotel and that she had told him
that if he continued to request payment, she would file for
bankruptcy and flee Anchorage.
In response to this renewed motion, Ms. Song retained an
attorney, who, on June 3, requested an extension of time to
respond, which the court granted. On July 24, Ms. Song filed an
opposition to Mr. Song's motion to enforce the dissolution
agreement, and, at the same time, moved to modify the dissolution
decree under Alaska Civil Rule 60(b)(1), (3), and (6), alleging
mistake, fraud, and other extraordinary circumstances. In her Rule
60(b) motion, Ms. Song asked the court to re-divide the marital
property. She proposed specific terms of a redivision order that
she deemed equitable.
Mr. Song opposed Ms. Song's Rule 60(b) motion and
requested a hearing on the opposing motions. Judge Michalski held
a one-hour evidentiary hearing on December 4, 1996. On
December 12, the court issued an order finding that the petition
for dissolution had fraudulently misrepresented the parties' debts.
Accordingly, the court denied Mr. Song's motion to enforce the
dissolution decree and granted Ms. Song's motion for relief under
Civil Rule 60(b).
In its order granting Ms. Song's motion, the court
directed her attorney to prepare findings of fact, conclusions of
law, and a modified decree that would fairly divide the marital
assets and debts. The court noted that "the relief and
modification is appropriate in light of the explicit fraud
perpetrated on the court by the dissolution papers as they related
to then existent marital debt and which made it impossible for the
master to effectively evaluate the equity of the decree entered in
Mr. Song moved to reconsider and clarify the Rule 60(b)
order. He also moved to set it aside, alleging that Ms. Song had
perjured herself at the December 4 hearing. The court denied these
motions and, in March 1996, issued an amended decree of divorce,
re-dividing the marital property. The amended decree incorporated
all of the findings of fact and conclusions of law that Ms. Song
had submitted, pertaining to redivision of the parties' property.
The court also awarded Ms. Song $24,680.80 in attorney's fees. Mr.
On appeal, Mr. Song argues that the superior court erred
in granting Ms. Song's motion for Civil Rule 60(b) relief; that,
even if Ms. Song had established grounds for relief under
Rule 60(b), the court erred in re-dividing the marital property
without holding a trial on disputed property issues; and that the
court erred in awarding attorney's fees to Ms. Song. We consider
each issue in turn.
A. The Court Did Not Err in Granting Ms. Song's Civil Rule
60(b) Motion for Relief from Judgment.
Mr. Song initially maintains that the court erred in
finding that Ms. Song's Rule 60(b) motion was timely. We normally
review an order granting a Rule 60(b) motion only for abuse of
discretion. [Fn. 1]
The trial court found that Ms. Song was entitled to
relief under Civil Rule 60(b) on the ground of fraud. Civil Rule
60(b)(3) allows courts to grant a party relief from a final
judgment upon a showing of "fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or other misconduct of
an adverse party,"[Fn. 2] but only if the motion for relief is
"made within a reasonable time, and . . . not more than one year
after the date of notice of the judgment."[Fn. 3]
Ms. Song filed her motion less than nine months after the
court entered the decree of dissolution -- well within Rule
60(b)(3)'s one-year deadline. Mr. Song nonetheless asserts that
she could have filed it earlier and contends that it was not filed
"within a reasonable time."[Fn. 4] Mr. Song cites Sandoval v.
Sandoval [Fn. 5] to support his claim of untimeliness. There, we
found untimely a motion filed by a party who was aware of the
disputed provisions in a decree prior to final judgment yet
remained silent. [Fn. 6]
But Sandoval is inapposite, since the record supports the
conclusion that Ms. Song did not learn the details of the disputed
agreement until well after the court entered the Songs' dissolution
decree. In an affidavit filed with her Rule 60(b) motion, and in
testimony at the December 4 hearing, Ms. Song explained that when
she signed the dissolution petition she did not fully understand
its contents. Ms. Song also testified that she had learned the
details of her obligations under the dissolution agreement
"sometime in January when I received paperwork indicating that I
need[ed] to pay [Mr. Song] some $20,000." While Ms. Song conceded
that she had retained an attorney in December 1995 or January 1996,
she explained that she had done so mainly to obtain a restraining
order preventing Mr. Song from harassing her. Mr. Song voluntarily
withdrew his January 1996 motion to enforce the dissolution decree.
By the time he filed a renewed motion to enforce in May 1996, Ms.
Song apparently was no longer represented, but she promptly hired
an attorney. Her attorney secured a forty-five-day extension to
familiarize himself with the case, and then filed her Rule 60(b)
Although Mr. Song presented evidence that tended to
undercut Ms. Song's version of events, the superior court was in
the best position to judge credibility and was entitled to credit
Ms. Song's testimony and other evidence supporting her position.
Given Ms. Song's version of events, the trial court did not abuse
its discretion in finding her motion to be timely. [Fn. 7]
Mr. Song separately questions the factual basis of Ms.
Song's Rule 60(b) motion. But Ms. Song's claim that Mr. Song
failed to fully disclose, either to her or to the court, the value
of their marital assets and debts "fits neatly into Rule 60(b)(3)."
[Fn. 8] Given that the court could properly resolve issues of
credibility in Ms. Song's favor, it did not abuse its discretion in
finding that Ms. Song was entitled to relief under Civil Rule
B. The Court Erred in Re-dividing the Marital Property
Without Notifying the Parties of Its Intent to Treat the
Dissolution as a Divorce and Allowing Them to Litigate Disputed
We must next consider whether the superior court erred in
summarily re-dividing the Songs' marital property upon granting Ms.
Song's motion to set aside the dissolution decree. This claim
presents a question of law, which we evaluate using our independent
judgment. [Fn. 9]
Mr. Song claims that, even if the court correctly decided
to set aside the original dissolution decree, it deprived him of
due process by refusing to hold a trial or a hearing on disputed
issues concerning the identification, valuation, and equitable
distribution of the parties' marital property. Ms. Song responds
that Mr. Song has waived this argument. She claims that he
requested nothing more than the court provided -- a hearing on her
Rule 60(b) motion and on his own motion to enforce the original
Ms. Song points out that, in her Rule 60(b) motion, she
submitted evidence of the value of the Songs' assets and requested
the court to re-divide the marital assets. In Ms. Song's view, Mr.
Song was aware of this request and, at the evidentiary hearing,
should have presented opposing evidence concerning the valuation
and division of marital assets. She asserts that he chose not to
present evidence of asset value, either in opposition to her motion
or at the hearing. Ms. Song argues that this failure precludes Mr.
Song from raising the issue of value.
But the superior court seemingly set the December 4
hearing on the calendar to hear only the two procedural motions
then pending: Mr. Song's motion to enforce the original decree and
Ms. Song's motion to set the decree aside. The court did not give
advance notice that the merits of the underlying property
distribution dispute would be at issue. [Fn. 10] Nor would it have
been reasonable for Mr. Song to anticipate that the court would
reach the underlying property issues at the hearing. These issues,
after all, involved the equitable division of a complicated marital
estate whose assets and liabilities each potentially exceeded a
million dollars. The shortness of the scheduled hearing -- just
one hour -- obviously signaled that the court did not expect to
hold a formal adversary hearing on issues of this magnitude.
Furthermore, in both his opening statement and closing
argument at the December 4 hearing, Mr. Song noted that if the
court granted Ms. Song's request to set aside the original decree,
it should then hold a trial to determine issues of property
division. Again in his motion for reconsideration and
clarification of the court's subsequent order granting Rule 60(b)
relief -- which directed Ms. Song to submit a proposed order
redistributing the marital property -- Mr. Song protested that the
procedure contemplated by the court "would presumably leave Mr.
Song with only the right to object to the proposed order within
five days of service pursuant to Civil Rule 78"; he argued that
"[t]his is not adequate"; once more he requested a trial on the
property division. And in his objection to Ms. Song's proposed
findings of fact and conclusions of law, he renewed this request,
arguing that "if the court sets aside the property division, he is
entitled to a trial on a new property division."
In short, the record belies Ms. Song's claim that Mr.
Song waived his right to a more extensive hearing on issues of
property division. Moreover, in the procedural context of this
case -- a dissolution proceeding -- the superior court had no
authority to resolve disputed property issues without the express
consent of both parties. In dissolution proceedings, the court is
empowered to amend the parties' written agreements relating to
property division "only if both petitioners concur in the amendment
in writing or on the record."[Fn. 11] The court in a dissolution
proceeding may interpret a property agreement's provisions to
clarify confusing language and resolve ambiguity. [Fn. 12] But it
cannot, without both parties' consent, modify the agreement's
essential terms to achieve results that the parties never agreed
upon or contemplated -- even if the court deems the modifications
to be necessary in the interest of fairness.
Perhaps in recognition of this restriction, the court in
the present case issued its amended property division order as an
amended decree of divorce, rather than an amended decree of
dissolution. But divorce decrees and dissolution decrees are not
interchangeable at the court's discretion. Under AS 25.24.200(d),
[t]he action [of dissolution] created under
this section is separate from the action [of divorce] created by AS
25.24.010. The procedures prescribed by AS 25.24.200 - 25.24.260
[for dissolution] do not apply to an action [for divorce] brought
under AS 25.24.010, nor do procedures prescribed under AS 25.24.010
- 25.24.180 [for divorce] apply to an action filed under this
section, except as specifically provided.
In our view, the distinct nature of the two forms of
action required the court to give the Songs advance notice of its
intent to convert their previously stipulated marital dissolution
proceeding into a divorce proceeding. And upon converting the
action, the court was further required to afford both parties an
opportunity to litigate fully all disputed issues of property
division, since they could not have litigated those issues in the
Because the trial court failed to notify Mr. Song that,
upon setting aside the decree of dissolution, it intended to treat
the case as a divorce, and because the court likewise failed to
provide him an opportunity for a full evidentiary hearing on
disputed property issues that arose as a result of the parties'
post-dissolution dispute, we conclude that Mr. Song was denied the
basic procedural fairness that he was due. Accordingly, although
we affirm the court's order setting aside the original decree of
dissolution under Civil Rule 60(b), we must vacate its amended
decree of divorce dividing the parties' marital property, and we
must remand this case for resolution of the property dispute.
C. The Award of Attorney's Fees Is Vacated in Part and
Affirmed in Part.
The issue of attorney's fees remains to be considered.
This court reviews an award of attorney's fees for abuse of
discretion. [Fn. 13]
1. The prevailing-party fee award must be vacated in
light of the remand on the property issues.
The trial court awarded Ms. Song attorney's fees of
$20,232.30 for prevailing on her Rule 60(b) motion. In calculating
this award, the court apparently deemed Alaska Civil Rule 82 to be
applicable. It found that Ms. Song had gained an economic benefit
of $262,205 as a result of the amended decree redistributing the
marital property, and used this figure as a basis for applying
Rule 82(b)(1)'s schedule fixing fees for parties recovering money
Mr. Song challenges this award, contending that Rule 82's
prevailing-party standards are inapplicable in property division
cases and that Ms. Song's attorney's fees should have been based on
the parties' relative economic situations and earning powers. [Fn.
14] However, our decision vacating the amended divorce decree and
remanding for trial on the property division issues renders Mr.
Song's argument largely academic. Even assuming that the court was
originally justified in applying Rule 82 and treating the economic
benefit of the property division as equivalent to a money judgment
under Rule 82(b)(1), Ms. Song is no longer a prevailing party with
respect to the division of the parties' marital property.
Accordingly, the attorney's fee award, as originally configured,
must be vacated.
On remand, the court will retain discretion to award Ms.
Song reasonable partial fees under Rule 82(b)(2) for prevailing in
her efforts to vacate the original decree of dissolution. [Fn. 15]
But fees reflecting work by Ms. Song's attorney on the merits of
her property division arguments should not be included in this
award; they should be deferred for consideration as part of any fee
requests relating to the remaining proceedings on remand. Because
this action will effectively be treated as a divorce on remand, the
award of attorney's fees for the future proceedings must be
governed by the normal divorce rule, rather than by Rule 82's
prevailing-party standards. [Fn. 16]
2. The award of full attorney's fees for defending
against Mr. Song's motion to set aside the Rule 60(b) order is
affirmed in light of Mr. Song's failure to address this issue.
The court separately awarded Ms. Song $4448.50 in fees
for defending against Mr. Song's motion to set aside its
December 12, 1996 decision to grant Ms. Song's Civil Rule 60(b)
motion. Mr. Song's motion was based on a claim of perjury by Ms.
Song. Ms. Song and her sister filed affidavits controverting the
claim of perjury. Ms. Song moved for an award of full attorney's
fees contending that the motion was simply an attempt to prolong
the litigation. The court denied Mr. Song's motion and awarded Ms.
Song full attorney's fees -- $4448.50 -- for defending against it.
On appeal, Mr. Song does not differentiate between this
smaller award of full fees and the larger award of partial fees for
Ms. Song's having prevailed on her Rule 60(b) motion. He
mistakenly assumes that all of the fees were part of the same award
and were awarded on the same basis. We have recognized that when
the trial court finds that a losing party asserted a claim or
defense in bad faith or vexatiously, it may award full attorney's
fees; we will set such an award aside only if it is "manifestly
unreasonable and amounts to a clear abuse of discretion."[Fn. 17]
Given Mr. Song's failure to argue this issue, we find no reason to
disturb the award of full fees to Ms. Song for defending against
Mr. Song's motion to set aside the order.
We AFFIRM the superior court's order setting aside the
original decree of dissolution. We VACATE the amended decree of
divorce and the property division order incorporated therein. We
AFFIRM the award of full attorney's fees to Ms. Song for defending
against Mr. Song's motion to set aside the Rule 60(b) order. We
VACATE the award of partial attorney's fees to Ms. Song under Rule
82(b)(1) for prevailing on her request to modify the property
division. We REMAND this case for further proceedings as directed
in this opinion.
1 See Lowe v. Lowe, 817 P.2d 453, 456 (Alaska 1991).
2 Alaska R. Civ. P. 60(b)(3).
3 Alaska R. Civ. P. 60(b).
5 915 P.2d 1222 (Alaska 1996).
6 Id. at 1224.
7 Cf. Schofield v. Schofield, 777 P.2d 197, 202 (Alaska
1989) (holding that superior court did not abuse its discretion in
finding that Rule 60(b)(6) motion was made within a reasonable
time); Alaska Placer Co. v. Lee, 502 P.2d 128, 131 (Alaska 1972)
(same, regarding a Rule 60(b)(1) motion).
8 O'Link v. O'Link, 632 P.2d 225, 230 (Alaska 1981).
9 See Carvalho v. Carvalho, 838 P.2d 259, 261 n.4 (Alaska
10 Cf. Cushing v. Painter, 666 P.2d 1044, 1045-46 (Alaska
1983) (finding that the court violated basic fairness by issuing
final custody order without notice after expedited, interim
11 AS 25.24.220(g).
12 See Aarvig v. Aarvig, 590 A.2d 704, 706-07 (N.J.
Super. App. Div. 1991) (holding that trial court is without
authority to modify a settlement agreement but may enforce and
interpret it); Bond v. Bond, 590 N.E.2d 448, 449-50 (Ohio App.
1990) (same). Cf. Gaston v. Gaston, 954 P.2d 572, 574 (Alaska
1998) (applying contractual analysis in interpreting custody
agreement); Davis v. Dykman, 938 P.2d 1002, 1007 (Alaska 1997)
(explaining that while a court may "gapfill"terms consistent with
fairness and the parties' intentions, it may not add terms to which
the parties did not or would not have agreed).
13 See Vokacek v. Vokacek, 933 P.2d 544, 549 n.10 (Alaska
14 See Hartland v. Hartland, 777 P.2d 636, 644 (Alaska
15 See Lowe v. Lowe, 817 P.2d 453, 460 (Alaska 1991).
16 See Hartland, 777 P.2d at 644.
17 Keen v. Ruddy, 784 P.2d 653, 657 (Alaska 1989) (quoting
Alaska N. Dev., Inc. v. Alyeska Pipeline Serv. Co., 666 P.2d 33, 42