Opinion
Supreme Court No. S-13148.
September 16, 2009.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Beverly W. Cutler, Judge, Superior Court No. 3PA-96-475 CI.
David Bartels, Big Lake, pro se.
Kathleen C. Barron, Wasilla, for Appellee.
Before: Fabe, Chief Justice, Eastaugh, Carpeneti, Winfree, and Christen, Justices.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Shortly before trial was to begin in Sharon Bartels's divorce action, David Bartels filed documents by which he attempted to withdraw from and terminate the divorce proceeding. He did not appear at trial. The superior court tried the case in his absence, and entered a divorce decree and findings and conclusions that divided the parties' marital property. David appeals the denial of his Alaska Civil Rule 60(b)(4) and (6) motions seeking post-trial relief. He appears to challenge the decree and order on two main theories: first, the superior court lacked jurisdiction, and second, the superior court lacked the power to divide the marital property. This case raises the implicit question whether the superior court had a duty to inform David, who was pro se for most of the proceedings below, of the proper procedure for what he was trying to accomplish with his pretrial documents. Because we conclude that the superior court had jurisdiction over David and the dispute, had the power to divide (and distribute) the property, and owed no additional duties to David, we affirm.
II. FACTS AND PROCEEDINGS
David Bartels and Sharon Lilja were married in Minneapolis, Minnesota, in 1974. They moved to Alaska and acquired property in Big Lake and Wasilla. Their son was born in May 1986. Sharon filed for divorce in June 1996.
David consented to the divorce in his pro se response to Sharon's divorce complaint. David acquired an attorney, and the parties litigated interim child support in February 1997. David then discharged his attorney and proceeded pro se. Trial on the remaining issues, including property division, was scheduled for September 15, 1997. In August 1997 David filed documents purporting to withdraw his consent to the proceedings. The documents included his affidavit stating "I hereby withdraw all consent!" (emphasis in original) and a "Motion to withdraw and terminate [the case]!" stating "I, David Clair Bartels, hereby declare my participation in Case No. 3PA-96-475 terminated in [its] entirety! 1.) Due to fraud and misrepresentation!" The court did not rule on this motion until after the divorce trial had ended.
The superior court held the divorce trial on September 15, 1997, as scheduled. David was present in the courtroom the morning of trial, but left approximately seven minutes before the trial began. Noting David's absence and the presence of a person who appeared to be David's friend, the judge asked the friend to check the men's room for David. When the friend could not find him, the judge asked Sharon's counsel to look for David in the hallways, conference room, and parking lot. She, too, was unsuccessful. Sharon's counsel asked the court to enter a default judgment, but the court denied the request because David had been in the courtroom earlier. The court then proceeded with the trial, noting on the record that David had filed the motion to terminate his participation in the lawsuit. Sharon and the child custody investigator each testified. On October 22 the superior court granted the divorce and awarded the Big Lake marital residence to Sharon and the Wasilla four-plex to David. In December 1997 the court ordered the clerk to issue a clerk's deed transferring the marital residence to Sharon after David refused to sign post-decree paperwork.
David did not file a timely appeal after entry of the October 22 decree and findings and conclusions or after entry of the December order, nor did he move for reconsideration. But, as he argues on appeal, over the next several years he filed "several papers, motions etc. trying to attack [the] Court's power and jurisdiction prescribed by law to take [his] land and home without [his] consent." The court denied these efforts.
These papers included, among others, a motion to dismiss and a "Motion for trial by jury," both filed in October 1998; a "Motion for hearing" filed in February 1999; a "72 hour Administrative Notice" filed in June 1999; a motion to reconsider filed in August 2000; and a motion to dismiss filed in January 2001.
In August 2005 David filed a motion under Alaska Civil Rule 60(b)(4) or (6) but failed to include the proof of notice required by Alaska Civil Rule 5(g). He t hen made several unsuccessful attempts to cure the service deficiencies. On November 13, 2007, David cured those deficiencies and on November 29, 2007, he filed an additional motion to reopen the case and for an order under Rule 60(b)(4) or (6) declaring the judgment void.
Alaska Civil Rule 60(b) provides in relevant part:
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 neglect;
. . . .
(4) the judgment is void;
. . . .
(6) any other reason justifying relief from the operation of the judgment.
Alaska Civil Rule 5(g) provides, in part, that in certain circumstances "the paper served shall include notice to the party of the party's right to file written opposition or response."
In May 2008 the superior court denied both of David's pending motions, holding that his Rule 60(b)(4) arguments were "contrary to Alaska statutes and case law" and that his Rule 60(b)(6) arguments were insufficient because he failed to assert facts establishing "extraordinary circumstances."
David appeals.
III. STANDARD OF REVIEW
We review orders denying Rule 60(b)(6) relief under the abuse of discretion standard. An abuse of discretion occurs when we are left with the definite and firm conviction on the whole record that the judge has made a mistake.
Morgan v. Morgan, 143 P.3d 975, 976 (Alaska 2006).
Powell v. Powell, 194 P.3d 364, 368 (Alaska 2008) (reviewing denial of Rule 60(b)(3) and (6) motion). See also Juelfs v. Gough, 41 P.3d 593, 596 (Alaska 2002) (reviewing denial of Rule 60(b)(6) motion).
A Rule 60(b)(4) motion challenges the validity of the judgment. The validity of a judgment is strictly a question of law. We therefore give de novo review to orders denying Rule 60(b)(4) motions.
DeVaney v. State, Dep't of Revenue, Child Support Enforcement Div., 928 P.2d 1198, 1200 (Alaska 1996) (citing Aguchak v. Montgomery Ward Co., Inc., 520 P.2d 1352, 1354 (Alaska 1974)).
Aguchak, 520 P.2d at 1354.
Dewey v. Dewey, 969 P.2d 1154, 1157 (Alaska 1999).
IV. DISCUSSION
David argues on appeal that the superior court lacked personal jurisdiction over him and subject matter jurisdiction over the dispute. He also argues that the court lacked the power to divide and distribute his property.
If the court lacked personal or subject matter jurisdiction the judgment would be subject to challenge for voidness under Alaska Rule 60(b)(4). See Burrell v. Burrell, 696 P.2d 157, 163 n. 11 (Alaska 1984) (citing Holt v. Powell, 420 P.2d 468, 471 (Alaska 1966)).
A. Whether the Superior Court Had Jurisdiction
Throughout his briefs, David repeatedly emphasizes his "withdrawal" of consent, suggesting that his withdrawal deprived the court of personal and subject matter jurisdiction, and also implying that his withdrawal prevented the court from granting a no-fault divorce in his absence.
Per AS 09.05.015(a)(1)(B) the superior court has personal jurisdiction over defendants who are "natural person[s] domiciled in this state." "Domicile" is defined in divorce cases as a physical presence in the state plus an intent to remain permanently. The record establishes that David has resided in Alaska since at least the inception of the superior court case and continues to reside here without evidencing an intent to become a resident somewhere else. The record consequently provides no reason to doubt that David is a domiciliary of Alaska and is subject to the personal jurisdiction of the Alaska courts in Sharon's divorce action.
Personal jurisdiction under this provision of the statute exists only if the court has subject matter jurisdiction over the dispute, and the person over whom the jurisdiction is sought is properly served with process. AS 09.05.015(a). As we will explain, the superior court had subject matter jurisdiction over this dispute. David does not argue, and the record does not suggest, that he was not properly served.
Perito v. Perito, 756 P.2d 895, 898-99 (Alaska 1988) (citing State v. Adams, 522 P.2d 1125, 1131 (Alaska 1974)).
The superior court also had subject matter jurisdiction over the divorce proceeding and the associated property division dispute. Alaska's superior courts are courts of general jurisdiction and therefore "hav[e] the power to hear all controversies which may be brought before [them] within the legal bounds of rights or remedies, except insofar as has been expressly and unequivocally denied by the state's constitution or statutes." No statutes or constitutional provisions deny the superior court jurisdiction over divorce issues. Moreover, several statutes explicitly and implicitly recognize that jurisdiction.
Siggelkow v. State, 731 P.2d 57, 61 (Alaska 1987) (emphasis in original).
See AS 22.10.020 (providing that superior court is trial court of general jurisdiction, with original jurisdiction in all civil matters); AS 22.10.025 (setting out powers of superior court in action for divorce, separation, or child support); AS 25.24.210 (providing that dissolution petition "shall be filed with the superior court").
Finally, Alaska's divorce statute does not require both spouses to consent to a divorce. Alaska Statute 25.24.010 provides that a spouse "may maintain an action against the other for divorce." (Emphasis added.) Therefore, David's "withdrawal" neither deprived the court of jurisdiction — personal or subject matter — nor prevented the court from issuing the divorce decree.
See Bass v. Bass, 437 P.2d 324, 327 (Alaska 1968) (granting divorce on grounds of incompatibility despite one spouse's protestations). David may be misreading AS 25.24.160(c), which states in part: "if one of the parties to an action for divorce or action declaring a marriage void expressly submits to the court the issue of property division and has not withdrawn that issue from the court before judgment, the court shall provide in the judgment for the division of property. . . ." (Emphasis added.) But this subsection does not allow one spouse to unilaterally withdraw the other's request for property division; it simply allows the party asking the court to divide the property to withdraw that request. Sharon never asked the court not to decide the property division issue.
B. Whether the Superior Court Had the Power To Divide and Distribute Property
David asserts that the superior court had no statutory authority to divide the marital property and award Sharon the Big Lake marital home. Alaska Statute 25.24.160(a), which in part addresses property division in divorce cases, states that in a judgment in an action for divorce, the court "may provide . . . (4) for the division between the parties of their property." David argues that the language in this statute is merely permissive: "[Sharon's counsel] apparently pretends `may provide for'division is synonymous with the court `shall have the power to' (transfer, distribute, convey, or whatever without a writ), and ` division between the parties' is magically synonymous with `distribute', convey, transfer, deprive, take, steal, etc." (Emphasis in original.)
David seems to argue that without a more explicit grant of statutory authority, the power to divide the marital property did not give the court power to distribute the marital property to enforce its award. But although the "may provide" language of AS 25.24.160(a) is permissive, and not mandatory, it nonetheless allows the court to apportion the marital property in its judgment. And subsection .160(a)(4) gives the court authority to enter a judgment that "may require that one or both of the parties assign, deliver, or convey any of their real or personal property . . . to the other party." The superior court was therefore acting within its statutory authority when it ordered the division and distribution of the Bartelses' property and when, after David refused to sign paperwork transferring the marital home to Sharon, the court ordered the clerk to issue a clerk's deed to Sharon.
AS 25.24.160(c) requires the court to divide the property if one of the parties submits the issue to the court, unless an exception under AS 25.24.155 applies.
AS 25.24.160(a)(4) (emphasis added).
C. The Superior Court's Obligation to David as a Pro Se Party
We have often reiterated the importance of treating pro se parties with greater leniency than those represented by counsel. In Breck v. Ulmer, we held that the "pleadings of pro se litigants should be held to less stringent standards than those of lawyers" and that "the trial judge should inform a pro se litigant of the proper procedure for the action he or she is obviously attempting to accomplish." Two years later, in Bauman v. State, Division of Family Youth Services, we declined to extend Breck to a situation in which a pro se litigant "failed to at least file a defective pleading." We held that the superior court did not err in failing to provide assistance to the pro se party.
Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987). We nonetheless determined that the trial court's failure to advise the pro se party of the procedures in that case was harmless error. Id.
Bauman v. State, Div. of Family Youth Servs., 768 P.2d 1097, 1099 (Alaska 1989).
Id. at 1099.
The superior court interpreted David's motions to withdraw and to terminate the case and his departure from the courtroom as attempts to terminate his participation in the divorce proceedings. The caption to David's motion implied that he was terminating his participation in the case. It was therefore reasonable for the superior court to proceed under the assumption that David was aware that his "termination of participation" would result in the adjudication of his rights in his absence. David's presence in the courtroom the morning of trial shows he was aware that his trial was on the docket. When he left before the trial began, the court made efforts to find him; when he could not be located, the court denied Sharon's request to enter a default judgment, conducted a trial, and required Sharon to put on evidence.
David now contends that he was attempting to give "the court and [his] wife notice not to proceed because [he] was without counsel and . . . was not ready for trial." (Emphasis in original.) If David's motions had attempted to postpone the trial or give him time to acquire new counsel, the superior court might have been obliged by Breck to notify him of the proper means for doing so, because there is a way to "cure" the deficiency in such a filing. But that is not what David's papers even arguably attempted to do. They instead indicated that he was either declining to participate in the proceedings or attempting unilaterally to withdraw from the lawsuit and stop the entire proceeding. If he was declining to participate, he did not need to file a motion with the court, and there was therefore no need for the court to inform him how to remedy any deficiency in his filing. And if he was attempting to unilaterally end the proceedings, he was attempting to achieve relief that he could not unilaterally effect, so the filing was incurably deficient. The superior court was therefore under no obligation to inform David that his rights could be adjudicated in his absence or to disabuse him of his apparent belief that he could unilaterally deprive the court of the power to try the case as scheduled.
See Capolicchio v. Levy, 194 P.3d 373, 379 (Alaska 2008) (stating that Breck requires superior courts to notify pro se parties of means to cure defective motions, but holding rule inapplicable when pro se party altogether fails to file motion).
Although David argues that there was a due process violation, his argument fails because the court met its obligations to David as a pro se party. See Alyssa B. v. State, 165 P.3d 605, 614-16 (Alaska 2007) (finding no due process violation when parent failed to attend trial that resulted in termination of parental rights). Moreover, the court denied Sharon's motion for a default judgment and actually conducted a trial and required Sharon to put on her evidence, despite David's failure to appear.
This case demonstrates how self-represented parties may put themselves in a procedurally fatal litigation position by failing to familiarize themselves with the procedural rules and the substantive principles that control judicial proceedings. David initially erred by presuming that he could deprive the court of jurisdiction by withdrawing his consent, in part on his appellate theory that he is "one of the natural bourne sovereign white People of the United States of Minnesota." His mistaken belief put him on a litigation course doomed to failure. His gravest mistake was failing to participate in the trial, thus waiving his opportunity to dispute Sharon's evidence of property values and to present evidence relevant to the arguments he asks us to consider on appeal. David's appellate briefs cite numerous cases, many of which include language that superficially, to someone with no legal training, might seem to relate to his arguments. But the language he relies on is irrelevant when put in its proper legal, factual, and jurisdictional context. Finally, David had ample opportunity to appeal the divorce decree and orders entered in 1997, or to file a timely motion to reconsider, but failed to do so. As a result, he was left with only extraordinary Rule 60(b)(4) and (6) remedies that could not provide him the relief he sought.
At oral argument before us, David requested a de novo trial, and also objected to our oral argument time limitations. But we are an appellate court. We therefore only consider the record in reviewing the lower court's factual determinations. See Matanuska Elec. Ass'n, Inc. v. Rewire the Bd., 36 P.3d 685, 700-01 (Alaska 2001) (denying de novo review and noting this court's deferential review of factual findings). Moreover, David's factual assertions at oral argument on appeal should have been presented to the trial court during the divorce trial. Because the trial court had personal and subject matter jurisdiction to try the case, David's failure to participate in the trial and to offer evidence at the fact-finding stage of the divorce proceedings makes his present factual contentions legally irrelevant.
V. CONCLUSION
For these reasons, we AFFIRM the superior court's denial of David's Alaska Civil Rule 60(b)(4) and (6) motions.