Opinion
Supreme Court No. S-10979.
July 7, 2004.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Eric Sanders, Judge. Superior Court No. 3AN-01-7788 Civil.
James W. Hill, Jr., Alaska Law Center, and David R. Edgren, Edgren Law Offices, LLC, Anchorage, for Appellant.
Colleen R. Baxter, Law Office of Colleen Baxter, Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
The marriage of Mark McAbee and Darice McBride ended with a dissolution decree. Eighteen months later Darice sought to vacate the dissolution decree, filing a request for Civil Rule 60(b) relief and a request for an evidentiary hearing in the superior court. The superior court denied this request, and Darice appeals. Because we find that the superior court did not abuse its discretion in denying relief, we affirm.
II. FACTS AND PROCEEDINGS
Darice and Mark married in Idaho on November 27, 1993. The marriage produced two children: Justin, born December 18, 1997, and Jared, born October 5, 1994. At some point thereafter the family moved from Idaho to Seward.
Darice and Mark separated in March 2001. Upon separation, Darice moved to Fairbanks with Justin, while Mark moved to Anchorage with Jared. In May 2001 Darice arranged to move back to her parents' home in Idaho. Darice claims her move was necessitated by family problems her parents, brother, and grandfather were encountering, and her desire to help attend to these problems. Darice suggested to Mark that she take their sons with her to Idaho, but Mark did not approve, and both boys ultimately stayed in Mark's custody in Anchorage.
Before Darice moved to Idaho, Darice and Mark agreed to seek a dissolution. The two of them met in Anchorage before Darice left Alaska in order to sign the dissolution petition. Mark completed the petition form, and the two both signed it before a notary public on June 1, 2001. The petition form indicated that there had been no domestic violence during the marriage. The petition also indicated that the parties agreed to share legal custody, but that Mark would have physical custody of both children and Darice would have visitation rights for summer vacation and Christmas break. After signing the petition for dissolution, Darice left Alaska for Idaho and Mark filed the petition.
A dissolution hearing was held in Anchorage on July 25, 2001, before Master Andrew M. Brown. Mark was present in person at the hearing and Darice participated via telephone from Idaho. Neither party was represented by counsel at the hearing. During the dissolution hearing Master Brown asked whether the communication between Darice and Mark had been friendly, and Darice responded that it was "on and off." When asked to elaborate, Darice explained the unfriendly communication as "us fighting on who caused what in this whole dissolution thing. It's nothing about the kids. When we do talk and in good conditions it's concerning the boys and their best welfare." At the hearing it was reaffirmed that Mark would have physical custody of the children, with Darice having visitation rights for Christmas and summer breaks. During the hearing the court did not request, nor did either Darice or Mark offer, any testimony regarding domestic violence in the marriage. On July 26, 2001, the superior court entered the decree of dissolution of marriage between Darice and Mark.
Darice moved back to Fairbanks from Idaho in September 2001. Despite the arrangement described in the dissolution decree, and with Mark's approval, Darice spent every other weekend with the children after her move back to Fairbanks. On June 27, 2002, during her summer visitation period with the children, Darice filed a Motion to Change Custody, Support, or Visitation requesting primary physical custody of the boys. Darice's reasoning for this change was her belief that the boys were placed in "excessive daycare," Jared was "suffering in school" while in the custody of his father, and a "change in circumstances" based on the fact that she moved back to Alaska. Mark opposed on August 2, 2002, arguing that there was not a sufficient change in circumstances to warrant a modification of the custody order. Mark also requested expedited consideration at that time because of his belief that Darice had enrolled the children in school in Fairbanks. On August 5, 2002, Superior Court Judge Eric Sanders ruled that Darice's motion was not yet ripe, and that the children must be returned to Mark by August 26 in order to attend school in Anchorage.
Darice then obtained counsel who entered an appearance on her behalf. On August 19, 2002, the superior court formally denied Darice's motion for custody and support modification. The superior court reasoned that Darice's move back to Fairbanks was not a substantial change in circumstances, and that Darice had not submitted sufficient proof that Mark was failing to address any of Jared's special needs.
Apparently in response to Mark's indication that he would withhold weekend visitation by Darice in September unless she offered proof that she would not take the children to Fairbanks, Darice filed an Expedited Ex-Parte Motion for Clarification of the Custody Order on September 12, 2002. Darice requested that the court issue an order specifying her authority to take the children "anywhere she wishes that is not expressly barred in the custody decree." Darice also requested an order permitting her phone contact with the children each evening between 7 p.m. and 9 p.m. The superior court denied the expedited and ex-parte aspects of the motion the same day it was filed, ruling that an ex-parte order is not appropriate for the motion filed, the motion was noncompliant with Civil Rule 77(g), and that this was not an emergency justifying immediate consideration. On October 14, 2002, the superior court denied Darice's request for clarification, again ruling that there were no changed circumstances necessitating a new visitation schedule. The court also ruled that phone contact was appropriate two to three times per week.
Darice does not challenge, and thus we need not address, the correctness of the superior court's ruling that Darice's return to Alaska from Idaho did not constitute a changed circumstance.
On December 17, 2002, Darice filed a Motion for Clarification of Visitation, requesting that she be able to take custody of the children on Friday, December 20, 2002, one day earlier than allowed under the custody decree. Darice also attached a Motion for Expedited Consideration to this request. The superior court denied Darice's request for expedited consideration on December 17, 2002, noting that Darice knew of the arrangement since June 2001, but only filed the request on December 17, 2002. On January 9, 2003, the superior court clarified the custody order such that Christmas and summer visitation periods were in accordance with the Anchorage School District calendar.
On January 6, 2003, Darice filed a Motion to Vacate the Dissolution Decree entered on July 26, 2001. Darice argued that the decree must be vacated because the court did not "carefully scrutinize the evidence of domestic violence" as required under AS 25.24.150(c) and AS 25.24.220(h). Darice also argued that the decree must be vacated under Civil Rule 60(b)(6) for two reasons. First, she asserted that Mark lied when he indicated in the dissolution petition that no domestic violence had occurred in the marriage. In addition, Darice claimed Mark coerced her into signing the petition through "physical intimidation validated by months of actual physical assaults on Darice," through threats of criminal prosecution against her for child abandonment, and by taking advantage of her exhaustion from having to address her "family crisis" in Idaho. Mark filed an opposition to Darice's motion to vacate on January 10, 2003, arguing that there was no evidence of domestic violence before the master at the dissolution hearing and that there is no other reason justifying relief of the decree.
On January 17, 2003, the superior court denied Darice's motion to vacate the dissolution decree, concluding:
The court is not required to inquire about domestic violence at a hearing if there is no evidence that violence occurred. Further, Civ. R. 60(b)(6) does not justify that the decree be vacated now. As an aside, the court is dubious of Ms. McBride's claims because of the timing.
(Emphasis in original.) On January 27, 2003, Darice filed a motion for reconsideration of this ruling. In support of her motion, Darice attached a series of affidavits from herself, her friends, and her family indicating the existence of domestic violence in the relationship between Darice and Mark. On January 31, 2003, the superior court issued a supplemental order again denying Darice's motion to vacate:
The court has listened to the 7/25/01 hearing and there is no hint of domestic violence. The new affidavits do not provide evidence that would justify 60(b) relief. It is apparent that Ms. McBride does not realize that many people who get a divorce agree to things concerning their property and children that they regret later. Vacating a divorce decree is done rarely.
Darice appeals only the January 17, 2003 order and the January 31, 2003 supplemental order by the superior court.
III. STANDARD OF REVIEW
We will not disturb a superior court's ruling on a Rule 60(b) motion unless we find that the superior court abused its discretion. We will find an abuse of discretion has occurred if we are "left with the definite and firm conviction on the whole record that the judge has made a mistake."
Dewey v. Dewey, 969 P.2d 1154, 1157 (Alaska 1999).
Juelfs v. Gough, 41 P.3d 593, 596 (Alaska 2002) (quotations omitted).
IV. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion when It Denied Darice's Motion for Rule 60(b) Relief.
Darice argues that the superior court erred when it denied her Rule 60(b) relief from the dissolution decree. The superior court first held that Rule 60(b)(6) did "not justify that the decree be vacated now." Following Darice's attempt to supplement her motion with affidavits asserting domestic violence during the marriage, the superior court ruled that these "new affidavits do not provide evidence that would justify 60(b) relief."
Initially, we must determine whether Darice's motion for relief was improperly based upon Rule 60(b)(6). Mark argues that the basis for relief upon which Darice relies must be brought as a motion for relief under Rule 60(b)(3). Alaska Civil Rule of Procedure 60(b) 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:
. . . .
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
. . . .
(6) any other reason justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the date of notice of the judgment or orders as defined in Civil Rule 58.1(c).
Mark claims that Darice brought her motion as a Rule 60(b)(6) request in order to bypass the one-year period of limitations on Rule 60(b)(3) requests for relief.
We have previously acknowledged that "Rule 60(b) in general, and clause (6) in particular, should be liberally construed to enable courts to vacate judgments whenever such action is necessary to accomplish justice." We have also recognized the interplay between section (6) and the first five sections of Rule 60(b). In particular, we have observed that "clause (6) and the first five clauses of Rule 60(b) are mutually exclusive. Relief under clause (6) is not available unless the other clauses are inapplicable." A party seeking relief under Rule 60(b) may not characterize its motion for relief as a section (6) motion in order to circumvent Rule 60(b)'s time limits.
O'Link v. O'Link, 632 P.2d 225, 230 (Alaska 1981).
Village of Chefornak v. Hooper Bay Constr. Co., 758 P.2d 1266, 1270 (Alaska 1988) (quoting Farrell v. Dome Labs., 650 P.2d 380, 385 (Alaska 1982)).
Snook v. Bowers, 12 P.3d 771, 776-77 (Alaska 2000).
Therefore, a party seeking to vacate a decision under Rule 60(b) "can invoke subsection (b)(6) only if none of the other five clauses apply and extraordinary circumstances exist." In determining whether "extraordinary circumstances" warrant vacating an order, courts consider "prejudice, if any, to the non-moving party if relief from judgment is granted, whether any intervening equities make the granting of relief inappropriate, and any other circumstances relevant to consideration of the equities of the case." This essentially boils down to a balance between the interest of finality in the judgment and the interest of justice in granting relief from the judgment.
Juelfs, 41 P.3d at 597 (quotation omitted).
Id. (quoting Norman v. Nichiro Gyogyo Kaisha, Ltd., 761 P.2d 713, 717 (Alaska 1988)).
Id.
Darice argues that certain elements concerning the formation of the dissolution petition and decree amount to extraordinary circumstances sufficient to warrant Rule 60(b)(6) relief. Darice offers three factors in this particular case that she claims amount to extraordinary circumstances: (1) that Mark "committed perjury" by denying the existence of domestic violence in the marriage on the dissolution petition, (2) that Mark "took advantage of" and used "threats" in order to "coerce" Darice into signing the dissolution petition, and (3) that this case involves child custody which warrants, in Darice's view, "a different standard."
Darice's complaint boils down to a claim that Mark made a misrepresentation during the dissolution process. Because a claim for relief based upon misrepresentation must be brought under Rule 60(b)(3), Darice cannot claim relief upon this basis under Rule 60(b)(6). Since she brought her motion for relief more than a year after the superior court entered the dissolution decree, however, she can no longer obtain relief through her misrepresentation claim.
Darice next argues that Mark used threats and coercion to obtain her signature on the dissolution petition. Darice alleges that "months of actual physical assaults" on her dissuaded her from objecting to the dissolution petition. She also claims that Mark threatened to report her to authorities for child "abandonment," and that he took advantage of her while she was exhausted from handling family problems in order to achieve her approval of the dissolution petition.
Darice's argument here is similar to that made in J.C. v. M.L.C. In that case, J.C. filed a Rule 60(b) motion challenging a dissolution decree on the basis that he agreed to the petition only because of threats by the other party. J.C. claimed that M.L.C. forced J.C. to admit paternity of her child on the threat that otherwise she would report J.C. to the IRS for tax evasion. J.C. further complained that he had only a limited understanding of English, posing an additional burden upon him. We held that his claim was essentially one of duress and thus fell solely within the bounds of Rule 60(b)(3).
668 P.2d 1351 (Alaska 1983).
Id. at 1352.
Id.
Id.
Duress consists of "a threat that arouses such fear as to preclude a party from exercising free will and judgment, or it must be such as would induce assent on the part of a brave person or a person of ordinary firmness." Here, Darice claims Mark took advantage of her and used threats in order to gain her assent to the dissolution petition. Such allegations would amount to a claim of duress and be appropriate for a Rule 60(b)(3) request. Since, however, Darice filed her motion for Rule 60(b) relief after the one-year limitation expired, the superior court did not abuse its discretion in denying her request for relief.
Crane v. Crane, 986 P.2d 881, 887 (Alaska 1999) (quotation omitted).
Darice's final argument asserts that this case presents extraordinary circumstances because it involves child custody. Darice argues that child custody issues are resolved by an analysis of the best interest of the child, and therefore "justify the invocation of Rule 60(b)(6)." Darice does not point to any legal authority indicating that all motions for relief from orders involving child custody will be considered under Rule 60(b)(6). She cites to Crane v. Crane for the point that child custody agreements must accord with the best interests of the children, but in Crane we did not specifically consider the husband's motion to vacate under Rule 60(b)(6). Motions to vacate child custody orders do not automatically become eligible for Rule 60(b)(6) relief, and we have previously considered such motions under the first five sections of Rule 60(b).
See, e.g., Conger v. Conger, 950 P.2d 119, 121-22 (Alaska 1997) (motion to set aside custody order considered under Rule 60(b)(1)); Perry v. Newkirk, 871 P.2d 1150, 1153 (Alaska 1994) (order terminating parental rights considered under Rule 60(b)(4)); and J.C., 668 P.2d at 1352 (considering motion to vacate decree regarding custody and child support under Rule 60(b)(3)).
In Livingston v. Livingston we did consider a challenge to a divorce decree's custody award under Rule 60(b)(6). In Livingston, the mother filed a complaint for divorce and custody of the daughter born of the marriage. When the husband did not appear at the default hearing, the superior court entered a default custody award in favor of the mother. Because the wife never disclosed that the husband and daughter were at all times located outside the state of Alaska, the superior court vacated judgment. On the wife's appeal, we held that the superior court was justified in setting aside default judgment under Rule 60(b)(6) because the wife had not disclosed that the child was not physically present in Alaska and a rational best interests custody decision was impossible without this information:
572 P.2d 79 (Alaska 1977).
Id. at 80.
Id.
Id. at 81.
In the case at bar there has never been a determination on the merits as to the custody disposition which would be in the best interests of the minor child. Given the commitment of Alaskan courts to this paramount criterion of the best interests of the child, we think that the non-disclosure, by both appellant and her counsel, of the child's physical location at the time the default hearing took place, constituted sufficient grounds under Civil Rule 60(b) for vacation of the decree's custody provisions. The facts surrounding the child's physical location were unquestionably material to the superior court's obligation to fashion a custody decree in accordance with the best interests of the child. Because of the non-disclosure, the duty of the superior court to determine the difficult question of an appropriate custody disposition was frustrated.
Id. at 86.
Based on Livingston, Darice asserts that Alaska's commitment to the best interests of the child in custody cases justifies Rule 60(b)(6) relief in the present case. Unlike the appellant in Livingston, however, Darice has not shown that the best interests of the children here were not considered. Both parents participated in the dissolution hearing. During the hearing, the court asked Darice and Mark a series of questions regarding custody of the children. The court asked why Darice and Mark wanted joint custody, what type of communication the parents had concerning the children, whether both parents understood joint legal custody required "friendly and frequent communication and cooperation," and whether both parents believed they could amicably work out the logistics involved in moving the children back and forth between visitations. These questions and the dialogue which resulted thereafter appear to be an adequate investigation into the best interests of the parties' children. Therefore, the superior court did not abuse its discretion in finding that this case did not present the level of extraordinary circumstances necessary to warrant Rule 60(b)(6) consideration.
B. The Superior Court Did Not Abuse Its Discretion when It Denied Darice's Request for an Evidentiary Hearing on Domestic Violence.
Darice also argues that the superior court erred in concluding that the evidence she provided did not compel a heightened level of scrutiny of the dissolution petition, and in denying her request for an evidentiary hearing regarding the existence of domestic violence during the marriage. Darice asserts that AS 25.24.220(h) requires the superior court to conduct an evidentiary hearing to determine whether the master sufficiently considered whether the present custody arrangement is in the best interests of the children. Alaska Statute 25.24.220(h) provides:
In its examination of a petitioner under (d) of this section, the court shall use a heightened level of scrutiny of agreements if
. . . .
(2) there is evidence that a party committed a crime involving domestic violence during the marriage or if any of the following has been issued or filed during the marriage by or regarding either spouse as defendant, participant, or respondent:
(A) a criminal charge of a crime involving domestic violence;
(B) a protective order under AS 18.66.100 — 18.66.180;
(C) injunctive relief under former AS 25.35.010 or 25.35.020; or
(D) a protective order issued in another jurisdiction and filed with the court in this state under AS 18.66.140[.]
Darice's brief essentially provides two arguments for her claim. First, she argues that since she has now provided the superior court with evidence of domestic violence — her affidavits — the court should open an evidentiary hearing to reconsider whether the custody arrangement addresses the best interests of the children. This argument is without merit. Alaska Statute 25.24.220(h) speaks to the level of scrutiny to be applied during a dissolution hearing. Darice is correct when she notes in her brief that had she brought this evidence before the master, the master would have been required to give heightened scrutiny to the dissolution petition. But Darice did not present this evidence to the master. Alaska Statute 25.24.220 does not provide parties with the option of reopening dissolution hearings in order to introduce new evidence.
Furthermore, Darice had opportunities to bring this evidence forth at the hearing. Master Brown asked both Darice and Mark if they could maintain "friendly and frequent communication and cooperation . . . as to the children." Darice responded affirmatively. In addition, just prior to the conclusion of the hearing Master Brown asked if either party had any questions. Darice again did not raise any issues of domestic violence.
Second, Darice intimates that she did in fact present evidence of domestic violence at the dissolution hearing, which would have triggered the heightened scrutiny at the dissolution hearing. She points to the following exchange during the hearing:
THE COURT: And since the separation, what kind of contact or communication have the two of you had with each other concerning the children?
MR. McABEE: Weekly.
THE COURT: And has it been friendly communication?
MS. McABEE: On and off.
THE COURT: When it's not — I mean is it any particular subject or problem?
. . . .
MS. McABEE: When it's not, it's just blank.
THE COURT: What do you mean, just blank you mean. . . .
MS. McABEE: It's trying — It's us fighting on who caused what in this whole dissolution thing. It's nothing about the kids. When we do talk and in good conditions it's concerning the boys and their best welfare.
(Emphasis added.) Darice implies that her statement regarding Darice and Mark "fighting on who caused what in this whole dissolution thing" should have initiated an inquiry into the nature of the fighting.
This argument is also without merit. The context of the exchange between Darice and the court does not convey a sense that "a crime involving domestic violence during the marriage" was committed. The court could well have understood Darice's use of the word "fighting" to mean "arguing" and not physical violence, especially since the court's original question concerned "communication[s]" between the two parents.
Since the superior court did not err when it ruled that Darice did not present evidence of domestic violence at the hearing, the court did not abuse its discretion when it ruled that an evidentiary hearing regarding any domestic violence in the marriage was unwarranted.
V. CONCLUSION
Because the superior court did not abuse its discretion in denying Darice's request for Civil Rule 60(b) relief and her request to conduct an evidentiary hearing, we AFFIRM the court's denial of such relief.