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McGee v. McGee (3/12/99), 974 P 2d 983
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
DEBRA A. McGEE, )
) Supreme Court No. S-7965
) Superior Court No.
v. ) 1JU-96-1296 Civil
KENNETH R. McGEE, ) O P I N I O N
Appellee. ) [No. 5092 - March 12, 1999]
KENNETH R. McGEE, )
Appellant, ) Supreme Court No. S-7966
v. ) Superior Court No.
) 1JU-93-353 DR
DEBRA A. McGEE, )
Appeal in File No. S-7965 from the Superior
Court of the State of Alaska, First Judicial
District, Juneau, Thomas M. Jahnke, Judge.
Appeal in File No. S-7966 from the Superior
Court of the State of Alaska, First Judicial
District, Juneau, Walter L. Carpeneti, Judge.
Appearances: Paul M. Hoffman, Robertson,
Monagle & Eastaugh, P.C., Juneau, for Debra A.
McGee. Robert S. Spitzfaden, Gruening &
Spitzfaden, APC, Juneau, for Kenneth R. McGee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
The decree dissolving Debra and Ken McGee's marriage said
nothing about possible individual fishing quotas (IFQs) and quota
shares. When an IFQ program was implemented soon after the
dissolution, Ken applied for and received all the shares. Because
marital fishing activity made both parties eligible to receive the
shares, Debra successfully moved for relief from the dissolution
decree. Concluding that "extraordinary circumstances"justified
Alaska Civil Rule 60(b)(6) relief, we affirm in Case No. S-7966.
Debra also brought a separate tort suit against Ken,
alleging that his IFQ application misrepresented facts that made
him eligible to receive all the shares. The superior court
dismissed the tort suit on the ground it was barred by the Rule
60(b) proceedings. Because Debra could not have asserted her tort
claims in the dissolution and Rule 60(b) proceedings, we hold that
res judicata does not apply, and reverse and remand in Case No. S-
7965. Since the Rule 60(b) relief collaterally estops Debra from
relitigating her quota shares claim, only her punitive damages
claim remains for litigation on remand.
2. FACTS AND PROCEEDINGS
Ken and Debra McGee married in 1978. They bought the F/V
Tamarack in 1980, and fished for salmon, halibut, and sablefish
(black cod) in Southeast Alaska. Both signed the promissory note
that financed the vessel's purchase, and the Coast Guard
Certificate of Ownership of Vessel listed them both as equal
owners. Both participated actively, but differently, in the
They filed for dissolution in March 1993. Their property
settlement divided their marital assets. The petition listed their
house (valued at $150,000) as their largest asset, and the F/V
Tamarack (valued at $80,000) as their third largest. The boat was
listed as joint property to be awarded to Ken. The property
settlement did not discuss quota shares or individual fishing
quotas. The court dissolved the marriage in April 1993.
In December 1993 the National Marine Fisheries Service
(NMFS) implemented a system of individual fishing quotas in
Alaska's halibut and sablefish fisheries. Previously, anyone with
a boat and commercial license could participate in the halibut
fishery. But under the IFQ system, only fishers possessing quota
shares could fish for halibut and sablefish, making the shares very
valuable. 1 A quota shares applicant had to show that he or she had
owned or leased a vessel that made legal and verifiable landings of
halibut or sablefish in the IFQ regulatory areas during 1988, 1989,
or 1990. 2 The base years are 1984 through 1990 and the qualifying
years are 1988, 1989, and 1990. During all base and qualifying
years, Debra co-owned the F/V Tamarack with Ken.
The NMFS mailed Ken a preprinted "Request for Application
for Quota Share Form for Individuals"in December 1993. Debra
never received this mailing, and Ken never advised Debra that he
had received it. Ken signed the form and submitted it with a form
identifying himself as the owner of the F/V Tamarack.
The NMFS then sent Ken preprinted halibut and sablefish
quota share applications that listed his eligible dates as February
3, 1984, to December 31, 1991, and his percent of interest in the
F/V Tamarack's activities as 100 percent. This was accurate as of
1994, but not as of the listed eligible dates. Despite this
discrepancy, Ken signed the form in June 1994 and returned it to
the NMFS. The NMFS issued Ken all the quota shares.
Debra did not apply for quota shares and therefore
received none. She alleges that she first learned in October 1994,
after the application period ended, that the program had been
implemented and that Ken was going to receive quota shares. Ken
contends that when they agreed to the property division in 1993,
Debra was aware of the possibility the IFQ program might be
1. Debra's Civil Rule 60(b) application
In February 1995, after the application period had closed
and Ken had received the quota shares, Debra filed a Rule 60(b)
motion in the dissolution proceeding to modify the dissolution
decree. She claimed that she was entitled to one-half of the F/V
Tamarack's quota shares or their reasonable value. Debra contended
that the quota shares were worth "not less than $700,000"; Ken
contended that they were worth "no more than $300,000."
Superior Court Judge Walter L. Carpeneti granted Rule
60(b)(6) relief on May 29, 1996, and on December 23, 1996, entered
final judgment awarding half of the quota shares and related IFQ's
to Debra. The court also awarded Debra $24,106 in attorney's fees.
Ken appeals these rulings in Case No. S-7966.
2. Debra's tort suit
During discovery conducted for her Rule 60(b) motion,
Debra learned that Ken had acquired all the quota shares by
misrepresenting critical facts to the NMFS. Ken conceded that he
had misrepresented his ownership of the F/V Tamarack to the NMFS,
but claimed it was an innocent mistake, not a willful
misrepresentation. In June 1996 Debra commenced a new action by
filing a complaint against Ken based on Ken's misrepresentation.
She sought an order requiring Ken to transfer to Debra one-half of
his quota shares and IFQs for the current year and to disgorge
profits gained by using Debra's quota shares and IFQs. She also
sought punitive damages and attorney's fees. Although the
complaint alleged that Ken had "wrongfully converted"fifty percent
of the quota shares and IFQs, the parties and the court thereafter
referred to Debra's action as one for replevin. We refer to it as
her "tort action"or "tort suit."
After the parties stipulated to dismissal of Debra's
claims for Ken's use of the IFQs and quota shares, Ken moved for
summary judgment. Superior Court Judge Thomas M. Jahnke dismissed
the tort action holding that Debra had "impermissibly split her
causes of action,"that the matter was moot, and that the second
claim was "merged with the dissolution case, and barred by the
decision in the dissolution case." The court awarded Ken
attorney's fees and costs. Debra appeals these rulings in Case No.
1. The Superior Court Did Not Abuse Its Discretion in
Granting Rule 60(b)(6) Relief.
1. Standards of review
Ken argues that Judge Carpeneti erred when he determined
that the quota shares were divisible marital property.
"Determining what property is available for distribution may
involve both legal and factual questions. Legal questions decided
by a subordinate court are reviewed de novo; we 'adopt the rule of
law that is most persuasive in light of precedent, reason and
policy.'"3 "Factual determinations made by a trial court may be
set aside only if clearly erroneous."4
Ken claims that the superior court erred by granting
Debra's motion under Rule 60(b)(6). "We will not disturb a trial
court's grant of a Rule 60(b) motion except upon a showing of an
abuse of discretion."5 The court will find an abuse of discretion
only when "left with a definite and firm conviction, after
reviewing the whole record, that the trial court erred in its
Ken also argues that the superior court abused its
discretion by awarding attorney's fees to Debra. "An award of
attorney's fees will only be reversed for an abuse of discretion,
which exists if the award is arbitrary, capricious, manifestly
unreasonable, or the result of an improper motive."7
2. The quota shares and IFQs are property.
A dissolution decree distributes "all jointly owned real
and personal property"that was "acquired only during marriage."8
We held in Ferguson v. Ferguson that quota shares distributed
during marriage are divisible marital property. 9
On the theory the quota shares and IFQs were not
divisible marital property because they did not exist when the
court entered the dissolution decree, Ken argues that the court
erred by granting Rule 60(b) relief. He contends that the
potential right to quota shares was far too speculative to be
considered marital property when the court dissolved the marriage,
and that Ferguson is inapposite because the Fergusons were divorced
after the quota share program was implemented.
We reject these contentions. The quota shares are
marital property even though the quota share program did not exist
when the decree was entered. The program established a right to
receive property (the quota shares and IFQs) based on the vessel's
activity in the qualifying years while Debra and Ken were married.
The quota shares were based on their joint efforts during the
marriage, and are thus analogous to income or assets received for
activities during the marriage. Income and assets received after
the dissolution for activities performed during the marriage are
deemed divisible marital property. 10
Moreover, in Ferguson we held that the husband had a
separate property interest in IFQs awarded "based on work he had
performed prior to the marriage"long before the IFQ program was
Ken cites cases holding that potential government
benefits are speculative and are therefore not divisible property. 12
We think these cases are inapposite. Once the NMFS chose to
implement its proposed quota share program, the McGees' right to
receive quota shares and IFQs was not at all speculative. The only
uncertainty was whether the NMFS would adopt the program; that
uncertainty is insufficient to defeat Debra's right to share in
property her marital contributions helped produce.
Ken also cites Storm v. Storm, where the court held that
a husband's inheritance was not divisible marital property. 13 But
the rule that property acquired during marriage is presumptively
marital does not apply to inheritances. 14
We therefore conclude that the superior court did not err
by treating the quota shares as divisible marital property.
3. Civil Rule 60(b)
Ken argues that the superior court lacked jurisdiction to
grant relief to Debra because she filed her motion more than one
year after the court entered the dissolution decree. If Rule
60(b)(1) or (2) applied, as Ken argues, Debra's motion -- filed
twenty-two months after the decree was entered -- would have been
untimely, depriving the superior court of jurisdiction to grant
Rule 60(b)(1) applies when there has been "mistake,
inadvertence, surprise or excusable neglect."16 Ken contends that
Debra's failure to anticipate the IFQ program and to protect her
interests was a "mistake"justifying relief under Rule 60(b)(1).
We disagree. Rule 60(b)(1) is "traditionally applied
. . . to cover events that occur prior to entry of judgment, . . .
and not to those events which post-date the judgment."17 The
superior court properly found that Rule 60(b)(1) did not apply
because the creation of the IFQ program and the award of the IFQs
to Ken occurred post-judgment.
Ken also contends that Rule 60(b)(1) applies because
Debra was well aware when the decree was entered that the quota
share system would be implemented, but made a "mistake"by failing
to ask the superior court to retain jurisdiction over the
dissolution until any uncertainty about the existence of additional
marital property was resolved. 18 We decline to consider this
argument because Ken raises it for the first time in his appellate
reply brief. 19
Ken also argues that Rule 60(b)(1) applies because a
change in the law created quota shares and IFQs. Rule 60(b)(1)
allows a party to seek relief on the basis of a change in the law. 20
The superior court concluded that Debra's motion did not fall
under Rule 60(b)(1) based on a change of law:
The reason is that this is not a mere "change
in the law,"such as a change in the
availability of pre-judgment interest (as was
at stake in Pearson), but is instead the
creation of an entire governmental entitlement
program which created in the parties to this
dissolution wealth of a comparatively enormous
We agree with that reasoning.
Ken also asserts that Rule 60(b)(2) applied. It
authorizes relief based on "newly discovered evidence which by due
diligence could not have been discovered in time to move for a new
trial under Rule 59(b)."21 The superior court concluded that the
quota share program was not "newly discovered evidence"because it
was created after the dissolution.
Ken does not discuss the superior court's treatment of
this issue, demonstrate any possible facial error in the court's
analysis, or cite any supporting legal authority. Because Ken does
not adequately brief this issue, we decline to consider it. 22
Rule 60(b)(6) authorizes relief for "any other reason
justifying relief from the operation of the judgment."23 We have
held that the following factors may constitute extraordinary
circumstances sufficient to reopen a property settlement agreement
under Rule 60(b)(6): "(1) the fundamental, underlying assumption of
the dissolution agreement had 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 [property
in question] was the parties' principal asset."24 These four
factors are not strictly essential conditions; rather, they are
"particular instantiations of the equitable factors required to
overcome the principle that, at some point, 'litigation must be
brought to an end.'"25
The superior court considered these factors and found
extraordinary circumstances justifying relief under Rule 60(b)(6).
The court reasoned: (1) the great relative value of the quota
shares destroyed the fundamental underlying assumption of the
settlement, a 50/50 property distribution; (2) the settlement was
not carefully thought out because the parties failed to mention the
quota shares in the dissolution papers or in the hearing; (3) the
parties had only limited contact with lawyers and had been
unrepresented; and (4) the quota shares were more valuable than any
single asset or perhaps even the sum of the entire marital estate.
We have not previously considered whether creation of a
governmental program like this might justify Rule 60(b)(6) relief
from a property settlement. But we have held in Van Brocklin v.
Van Brocklin, that where a divorce decree does not settle the
parties' property rights because all property issues were withdrawn
from the court's consideration, a court may later divide the
marital property on the motion of one of the former spouses. 26 Van
Brocklin is distinguishable because the McGees' decree disposed of
all their property other than the quota shares. And we have
previously noted that "Van Brocklin does not necessarily authorize
an independent action . . . where the property division approved by
the court and incorporated in the final divorce decree omitted a
single asset."27 The instant case requires us to decide whether a
party may reopen a divorce decree when only one asset was omitted.
We hold that a party may do so under the circumstances
presented here. The superior court properly considered the four
applicable factors and concluded that extraordinary circumstances
justified relief. Given the unusual structure of the quota share
program, it was not an error to grant Rule 60(b) relief from the
decree which did not address or anticipate this marital property.
Debra only sought to reestablish the status quo of an equal
division of property through her motion. 28
We reject Ken's argument that the superior court erred by
concluding that Debra's motion was filed within a reasonable time.
Debra alleged that she did not learn of the implementation of the
IFQ program until October 1994. The NMFS issued shares to Ken in
December 1994 and January 1995. Debra moved to modify the
dissolution decree in February 1995, no more than five months after
she became aware of the change in circumstances. Moreover, the
twenty-two-month delay between the entry of the dissolution decree
and the filing of Debra's Rule 60(b)(6) motion was within the range
we have held to be "reasonable."29
Ken argues that Debra was estopped from seeking Rule
60(b) relief. He first argues that she delayed in raising her
claim to the quota shares while he spent substantial sums on the
F/V Tamarack in reliance on his expectation that he would receive
all the quota shares. He further argues that the parties
anticipated the quota share program, and that Debra agreed that Ken
would receive all the quota shares.
We have described how a party may waive, and therefore be
estopped from later litigating, a claim:
"A waiver can be accomplished either expressly
or implicitly. An implied waiver arises where
the course of conduct pursued evidences an
intention to waive a right, or is inconsistent
with any other intention than a waiver, or
where neglect to insist upon the right results
in prejudice to another party. To prove an
implied waiver of a legal right, there must be
direct, unequivocal conduct indicating a
purpose to abandon or waive the legal right,
or acts amounting to an estoppel by the party
whose conduct is to be construed as a
We have also stated that,
Implied waiver created by neglect to insist
upon a right "is, in reality, a type of
equitable estoppel." It follows that "neglect
to insist upon a right only results in an
estoppel, or an implied waiver, when the
neglect is such that it would convey a message
to a reasonable person that the neglectful
party would not in the future pursue the legal
right in question."
We conclude, based on our review of the record, that
implied waiver and estoppel do not bar Debra's quota shares claim.
The record suggests that the parties intended to divide their
assets equally. The vague reference to "permits"in one
negotiating document does not persuade us that Debra agreed that
Ken would receive all potentially valuable quota shares. 32 Debra's
alleged inaction does not amount to "direct, unequivocal conduct"
that she meant to waive her legal right to quota shares. And any
possible neglect in failing to preserve a claim to quota shares at
the time of the dissolution would not convey "a message to a
reasonable person"that she "would not in the future pursue the
legal right in question."33
Ken also argues that Debra is quasi-estopped because she
asserted inconsistent positions regarding the quota shares. In
Smith v. Thompson, we stated that a party may be quasi-estopped if
he or she asserts a position inconsistent with one previously
Quasi-estoppel did not bar Debra's motion. She did not
assert a position inconsistent with one she took previously. The
quota shares did not exist as a marital asset at the time of the
dissolution, and the record suggests that the parties intended to
divide their assets equally.
We conclude that it was not error to grant relief under
5. Attorney's fees
Ken argues that the superior court abused its discretion
by awarding Debra $24,106 in attorney's fees under Civil Rule
82(b)(2) and (b)(3). The superior court emphasized that Ken was
largely to blame for the litigation because he misrepresented his
ownership of the F/V Tamarack.
The four-page order awarding fees contains a reasoned and
prudent analysis of the potentially relevant circumstances. Ken
has not demonstrated that the award was arbitrary, capricious,
manifestly unreasonable, or the result of an improper motive.
We also reject Ken's argument that the award penalizes
him for vigorously litigating a novel issue, chilling future
litigation. The superior court observed that the issues were novel
and that Ken was entitled to vigorously litigate his claims. But
it apparently based the award largely on Ken's "indefensible"
misrepresentation that led to the Rule 60(b) dispute. It was not
error to do so.
Ken also argues that the "relative economic positions"
standard rather than Rule 82 should have governed the fees issue,
and that because Debra and Ken have relatively similar economic
circumstances, no award is justified. Citing O'Link v. O'Link, he
argues that Rule 82 applies only when an original property
settlement is modified. 35 He contends that this action does not
involve a modification of the original decree because it "involves
property issues which were never raised or considered in the
We disagree. In Lowe v. Lowe, we approved the use of
Rule 82 to award attorney's fees when a party prevailed on a Rule
60(b)(6) motion to modify a divorce decree, stating that "[t]he
divorce judgment exception to Rule 82 does not apply to
post-judgment modification and enforcement motions."36 The superior
court did not abuse its discretion by awarding attorney's fees
under Rule 82 after it granted Rule 60(b)(6) relief to Debra.
2. S-7965: The Tort Action
Debra argues that it was error for Judge Jahnke to
dismiss her tort suit.
1. Standard of review
Although the dismissal order did not invoke Civil Rule 56
or refer to summary judgment, it granted the relief Ken's summary
judgment motion sought and appears to have been based on the
court's review of materials outside the pleadings. We therefore
treat it as a summary judgment. 37 "'When reviewing a grant of
summary judgment, the court must determine whether any genuine
issue of material fact exists and whether the moving party is
entitled to judgment on the law applicable to the established
facts.'"38 We review de novo an order granting summary judgment. 39
We may consider any argument ascertainable from the record, even
if the superior court did not rule on it, when reviewing the
summary judgment order. 40
2. Res judicata (claim preclusion)
The superior court dismissed Debra's tort action in part
because she "impermissibly split her causes of action." The
superior court gave res judicata effect to the Rule 60(b)
proceeding, because the prohibition against "splitting a cause of
action"is based on the principles of res judicata. 41
Citing Nelson v. Jones, Debra contends that she did not
have to join the tort action into the dissolution action. 42 She
implies that the superior court should never have examined whether
her two actions were predicated on the same transaction.
We stated in Nelson that the principles of res judicata
do not require tort claims between married persons to be litigated
in their divorce proceedings, because that requirement would hinder
the resolution of divorce actions. 43 But Nelson held only that res
judicata did not require that interspousal tort claims be joined in
the original divorce action.
Debra asks us to extend Nelson, and to hold that res
judicata does not require that a tort claim be joined in a Rule
60(b) application that seeks relief from the original divorce or
dissolution decree. As a result, tort actions filed after a party
moves for Rule 60(b) relief would be exempt from the principles of
In Nelson we approvingly quoted from a Wisconsin Court of
Appeals opinion identifying reasons why divorce and tort actions
should be litigated separately:
Although joinder is permissible, the
administration of justice is better served by
keeping tort and divorce actions
separate. . . . Divorce actions will become
unduly complicated if tort claims must be
litigated in the same action. A divorce
action is equitable in nature and involves a
trial to the court. On the other hand, a
trial of a tort claim is one at law and may
involve, as in this case, a request for a jury
trial. Resolution of tort claims may
necessarily involve numerous witnesses and
other parties such as joint tortfeasors and
insurance carriers whose interests are at
stake. Consequently, requiring joinder of
tort claims in a divorce action could unduly
lengthen the period of time before a spouse
could obtain a divorce and result in such
adverse consequences as delayed child custody
and support determinations. The legislature
did not intend such a result in enacting the
These well-articulated concerns strongly weigh against
joint litigation of such claims. We conclude that they apply to a
tort action filed after Rule 60(b) relief is sought in a divorce or
dissolution matter. We are also persuaded in this case by the
difficulty inherent in providing to Debra in the Rule 60(b)
proceeding the same rights and remedies she would have been
entitled to in her tort action, e.g., a jury trial and an
opportunity to seek punitive damages. 45 For these reasons, res
judicata does not bar a tort action based on the same claim as a
party's prior Rule 60(b) motion.
3. Collateral estoppel (issue preclusion)
Although principles of res judicata do not bar Debra's
tort action, we conclude that collateral estoppel barred the re-
litigation of Debra's entitlement to the quota shares. 46 The
superior court dismissed Debra's tort action, stating that Debra
"impermissibly split her causes of action, because the matter is
moot, and because the second claim is merged with the dissolution
case, and barred by the decision in the dissolution case." The
fact that the superior court did not use the term "collateral
estoppel"in its order does not prevent us from considering whether
that doctrine applies. 47
We apply a three-element test to determine whether
collateral estoppel bars an action:
(1) collateral estoppel must be asserted
against a party or one in privity with a party
to the first action; (2) the issue to be
precluded must be identical to that decided in
the first action; and (3) the issue in the
first action must have been resolved by a
final judgment on the merits.[48 ]
The first element is undisputably present because the
Rule 60(b) motion and the tort action involved the same parties.
The third element is also undisputably present. The
grant or denial of a Rule 60(b) motion is a final judgment, despite
a pending appeal. 49 Therefore, entry of Rule 60(b) relief was a
The critical question is whether the Rule 60(b) motion
and the tort action addressed identical issues. By filing her Rule
60(b) motion, Debra re-opened the property distribution agreement
and litigated the question of her right to the quota shares. But
the issue of whether Ken intentionally misrepresented his ownership
of the boat was not litigated or decided in the Rule 60(b)
proceeding. The superior court predicated Rule 60(b) relief solely
on the property settlement, rather than on Ken's alleged
We therefore conclude that Debra is collaterally estopped
from re-litigating her right to the quota shares, but that it was
error to dismiss her entire tort action. Still outstanding is the
issue of whether Ken's conduct was sufficiently outrageous to
permit punitive damages; if it was, the amount of any punitive
damages award is also in issue. We reverse and remand for further
4. Attorney's fees
Because we have reversed the dismissal of Debra's tort
suit, and because Debra is precluded from relitigating only one
issue -- her right to the quota shares -- in the tort suit, Ken is
no longer the prevailing party in the tort suit. It is therefore
necessary to vacate Ken's attorney's fees award.
Because the superior court properly granted Debra's Rule
60(b)(6) motion, we AFFIRM in Case No. S-7966.
Because the Rule 60(b) proceeding resolved only one issue
-- Debra's entitlement to the quota shares -- raised in the tort
suit, we REVERSE the judgment in Case No. S-7965, VACATE the
attorney's fees award, and REMAND for further proceedings.
1 We described the IFQ program in Ferguson v. Ferguson, 928
P.2d 597, 598 (Alaska 1996).
2 See 50 C.F.R. § 679.40(a)(2)(A) (1999).
3 Bellanich v. Bellanich, 936 P.2d 141, 143 (Alaska 1997)
(quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).
4 Id. (citing Alaska R. Civ. P. 52(a)).
5 Lowe v. Lowe, 944 P.2d 29, 31 (Alaska 1997) (citing
Gravel v. Alaskan Village, Inc., 423 P.2d 273, 277 (Alaska 1967)).
6 Buster v. Gale, 866 P.2d 837, 841 n.9 (Alaska 1994)
7 Hughes v. Foster Wheeler Co., 932 P.2d 784, 793 (Alaska
1997) (citation omitted); see also Lowe, 944 P.2d at 34.
8 AS 25.24.200(a)(3); AS 25.24.160(a)(4).
9 See Ferguson v. Ferguson, 928 P.2d 597, 600 (Alaska
1996); see also Johns v. Johns, 945 P.2d 1222, 1226 (Alaska 1997)
("[A] spouse's interest in an IFQ is his or her separate property
to the extent that the size of the quota share is attributable to
labor performed prior to the marriage, and marital property to the
extent that it is attributable to labor performed during the
10 Cf. Lundquist v. Lundquist, 923 P.2d 42, 49-50 (Alaska
1996) (holding that compensatory damages intended to replace lost
fishing income for period during which parties were married are
divisible marital property); Bandow v. Bandow, 794 P.2d 1346, 1348
(Alaska 1990) (holding that lost earnings component of annuity
given to spouse in settlement of medical malpractice claim was
marital property to the extent it replaced predivorce lost
earnings); Laing v. Laing, 741 P.2d 649, 655-56 (Alaska 1987)
(adopting rule that non-vested pension rights, although
speculative, are divisible marital assets).
11 Ferguson, 928 P.2d at 600.
12 See Malone v. Malone, 563 So. 2d 1061, 1062 (Ala. Civ.
App. 1990) (stating that there is no divisible property interest in
application for broadcast license valued at $100,000 to $300,000
absent guarantee that license would be granted); Heggen v. Heggen,
452 N.W.2d 96, 101 (N.D. 1990) (holding that it was not clearly
erroneous to exclude potential drought assistance payments from
calculation of marital estate, given that receipt of such payments
was speculative); Branson v. Branson, 411 N.W.2d 395, 397 (N.D.
1987) (holding that failure to include anticipated future
government farm support payments in parties' assets prior to
equitable division was not abuse of discretion because receipt of
future payments was speculative). Cf. Cobb v. Cobb, 420 S.E.2d
212, 214 (N.C. App. 1992) (holding that future rights to timber on
marital property, projected to earn $174,300 when timber is clear
cut in 2007, are not divisible property).
13 See Storm v. Storm, 470 P.2d 367, 370 (Wyo. 1970).
14 See Lundquist, 923 P.2d at 49.
15 See Alaska R. Civ. P. 60(b); Lowe v. Lowe, 817 P.2d 453,
457 (Alaska 1991) ("Under Alaska Civil Rule 60(b), the superior
court lacks subject matter jurisdiction to set aside judgments
unless a motion is made within the Rule 60(b) time limits.").
16 Alaska R. Civ. P. 60(b)(1).
17 Olson v. Olson, 856 P.2d 482, 484 (Alaska 1993) (citing
11 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2858 (1973 & Supp. 1993)).
18 Cf. Johns, 945 P.2d at 1226-27 (holding that superior
court did not abuse its discretion by retaining jurisdiction over
party's interim permits); Laing, 741 P.2d at 657-59 (endorsing
"reserved jurisdiction"method to divide pension rights if and when
they become vested).
19 See Alaska R. App. P. 212(c)(3); Petersen v. Mutual Life
Ins. Co., 803 P.2d 406, 411 n.8 (Alaska 1990) (holding that
argument was waived because appellant failed to "advance any legal
argument as to why the court erred"in main brief).
20 See Pearson v. Bachner, 503 P.2d 1401, 1402 (Alaska
21 Alaska R. Civ. P. 60(b)(2).
22 See Adamson v. University of Alaska, 819 P.2d 886, 889
n.3 (Alaska 1991) ("[W]here a point is given only a cursory
statement in the argument portion of a brief, the point will not be
considered on appeal.").
23 Alaska R. Civ. P. 60(b)(6).
24 Schofield v. Schofield, 777 P.2d 197, 202 (Alaska 1989).
25 Clauson v. Clauson, 831 P.2d 1257, 1261 (Alaska 1992)
(quoting Lowe, 817 P.2d at 459).
26 See Van Brocklin v. Van Brocklin, 635 P.2d 1186, 1190
27 Johnson v. Johnson, 824 P.2d 1381, 1382 n.2 (Alaska
28 See Clauson, 831 P.2d at 1261 (approving of Rule 60(b)(6)
modification of divorce decree to restore status quo when ex-
husband unilaterally waived retirement benefits one-half of which
ex-wife was entitled to).
29 See Lowe, 944 P.2d at 32-33 (holding delay of four and
one-half years may be reasonable); Foster v. Foster, 684 P.2d 869,
871 (Alaska 1984) (affirming grant of Rule 60(b) motion made after
twenty-two months). See generally Schofield, 777 P.2d at 202
(considering delay between alleged change of circumstances and
motion to modify, and delay between dissolution decree and motion,
in determining whether motion was filed within reasonable time).
30 Airoulofski v. State, 922 P.2d 889, 894 (Alaska 1996)
(quoting Milne v. Anderson, 576 P.2d 109, 112 (Alaska 1978)).
31 State, Dep't of Revenue v. Valdez, 941 P.2d 144, 153 n.9
(Alaska 1997) (quoting Wausau Ins. Cos. v. Van Biene, 847 P.2d 584,
589 (Alaska 1993)).
32 See Airoulofski, 922 P.2d at 894.
33 See Valdez, 941 P.2d at 153 n.9.
34 See Smith v. Thompson, 923 P.2d 101, 105 (Alaska 1996);
see also Wright v. State, 824 P.2d 718, 721 (Alaska 1992) ("Quasi
estoppel appeals to the conscience of the court and applies where
'the existence of facts and circumstances mak[es] the assertion of
an inconsistent position unconscionable.'") (quoting Jamison v.
Consolidated Util., Inc., 576 P.2d 97, 102 (Alaska 1978)).
35 See O'Link v. O'Link, 632 P.2d 225, 226-28 (Alaska 1981).
36 817 P.2d at 460 (citing L.L.M. v. P.M., 754 P.2d 262, 264
37 See Andrews v. Wade & De Young, Inc., 875 P.2d 89, 90-91
38 Jackinsky v. Jackinsky, 894 P.2d 650, 654 (Alaska 1995)
(quoting Wright v. State, 824 P.2d 718, 720 (Alaska 1992)).
39 See id.
40 See id.
41 See Jack H. Friedenthal, et al., Civil Procedure 617-22
(2d ed. 1993).
42 See Nelson v. Jones, 787 P.2d 1031, 1034 (Alaska 1990).
43 See 787 P.2d at 1034; see also Delahunty v. Massachusetts
Mut. Life Ins. Co., 674 A.2d 1290, 1296 (Conn. 1996) (stating that
doctrine of res judicata does not require all issues between
spouses to be litigated in dissolution proceedings).
44 Nelson, 787 P.2d at 1034 (quoting Stuart v. Stuart, 421
N.W.2d 505, 508 (Wis. 1988)).
45 See Restatement (Second) of Judgments § 26(1)(c) (1992):
[Res judicata does not apply when t]he
plaintiff was unable to rely on a certain
theory of the case or to seek a certain remedy
or form of relief in the first action because
of the limitations on the subject matter
jurisdiction of the courts or restrictions on
their authority to entertain multiple theories
or demands for multiple remedies, and the
plaintiff desires in the second action to rely
on that theory or to seek that remedy or form
of relief. . . .
46 "The applicability of collateral estoppel to a particular
set of facts is a legal question over which we exercise independent
review." Sever v. Alaska Pulp Corp., 931 P.2d 354, 359 n.4 (Alaska
1996) (citing State v. United Cook Inlet Drift Ass'n, 895 P.2d 947,
950 (Alaska 1995)).
47 See Andrews, 875 P.2d at 92 n.8 (citing Restatement
(Second) of Judgments ch. 3 intr. note (1982)); Jeffries v. Glacier
State Tel. Co., 604 P.2d 4, 8 n.11 (Alaska 1979) (noting that res
judicata in broad sense includes doctrines of merger, bar, direct
estoppel, and collateral estoppel).
48 Sever, 931 P.2d at 359 (citing United Cook Inlet Drift
Ass'n, 895 P.2d at 950-51).
49 Cf. Calhoun v. Greening, 636 P.2d 69, 72-73 & n.4 (Alaska
1981) (treating denial of Rule 60(b) motion as final judgment for
res judicata purposes because denial is appealable under Appellate
50 See Restatement (Second) of Judgments § 27 (1992)
(determination in first action is conclusive in subsequent action
if "the determination is essential to the judgment").