O'Link v. O'Link

• Court: Alaska Supreme Court
• Writing for the Court: Before RABINOWITZ; COMPTON
• Citation: O'Link v. O'Link, 632 P.2d 225 (Alaska 1981)
• Decision Date: 31 July 1981
• Docket Number: No. 5297,5297
• Parties: Michael O'LINK, Appellant, v. Sylvia O'LINK, Appellee.

Page 225

632 P.2d 225

Michael O'LINK, Appellant, v. Sylvia O'LINK, Appellee.

No. 5297.

Supreme Court of Alaska.

July 31, 1981.

Brent M. Wadsworth, Wadsworth, Stanley & Yerbich, Anchorage, for appellant.

William Van Doren, Anchorage, for appellee.

Before RABINOWITZ, C. J., and CONNOR, BURKE and COMPTON, JJ.

OPINION

COMPTON, Justice.

This is an appeal from a superior court judgment modifying a property division incorporated within a divorce decree. The original divorce decree awarded Mr. O'Link the couple's real property. Mrs. O'Link was awarded $15,000.00 in cash. As a result of both parties' motions for modification of the decree, the superior court increased Mrs. O'Link's cash award to $65,000.00.

Mr. O'Link appeals, claiming that the superior court erred in relying on allegedly inflated values for the property that he listed in a loan application eighteen months after the divorce decree was entered. ¹ We do not reach the merits of Mr. O'Link's argument. The parties filed their motions for modification of the decree almost two and a half years after the decree was entered. We find that the motions were not filed within the time limits set out in Civil Rule 60(b). ² The superior court therefore, lacked jurisdiction to grant relief from the original divorce decree.

I. FACTS

Mr. and Mrs. O'Link were married from 1971 through 1976. They had one child, Stephan. Mrs. O'Link filed a complaint for divorce in August, 1976, alleging an incompatibility of temperament between the parties. She sought custody of the child and $275.00 per month child support. She asked the court to make an equitable division of the property. In his amended answer and counterclaim, Mr. O'Link also sought custody of the child. Both parties were represented by counsel in the proceedings. Trial was held in February, 1977. The court accepted the parties' in-court stipulation regarding custody and property division. Mrs. O'Link was awarded custody of the child. Mr. O'Link was granted visitation rights and was required to pay $150.00 per month child support.

Pursuant to the property division, Mr. O'Link was to immediately pay Mrs. O'Link $1,000.00 and, commencing March 1, 1977, to pay $389.00 per month until the balance of $14,000.00 was paid. Mr. O'Link did not pay the initial $1,000.00, and he stopped making monthly support and property payments in January, 1978. The arrearages were reduced to judgment, pursuant to Mrs. O'Link's motion, in December, 1978. ³

In April, 1979, Mr. O'Link filed a motion for modification of the arrearages judgment. He claimed that the judgment was excessive because it did not reflect payments he actually made, credit he should have received for the rental value of the family residence during Mrs. O'Link's occupancy following the divorce, and credit he should have received for the value of personal property Mrs. O'Link removed from the family residence. ⁴ In response, Mrs. O'Link filed an affidavit in which she disputed Mr. O'Link's claims and asserted that she had reason to believe he made false statements at the time of the divorce concerning assets acquired during the marriage.

Mr. O'Link's counsel negotiated with Mrs. O'Link's counsel in an attempt to resolve the dispute over the arrearages and other issues between the parties. In July, 1979, Mr. O'Link paid the entire arrearage of child support. In August, 1979, he filed, pro se, a motion for modification of the divorce decree. He asked the court to reduce Mrs. O'Link's cash award from $15,000.00 to $7,000.00 because the lesser amount more closely represented one-half of the couple's equity in their real property at the time of the divorce.

In September, Mrs. O'Link filed opposition to the motion for modification of the divorce decree, accompanied by a certificate of counsel. Mrs. O'Link again asserted her belief that Mr. O'Link had not fully disclosed the value of the couple's assets at the time of divorce. Her counsel requested a hearing, stating that he believed there was "great merit for the judgment to be increased in (Mrs. O' Link's) favor." The superior court viewed Mrs. O'Link's pleadings as a cross-motion for modification of the decree.

In October, 1979, a hearing was held in the superior court. ⁵ Each party called an expert witness to testify to the value of the real property. The court found "clear and convincing evidence ... that a full and fair disclosure of the values of the property was not made by the defendant at the time of the divorce." In view of this, the court increased Mrs. O'Link's cash award to $65,000.00. The court found that Mr. O'Link had paid $4,386.00 of the original settlement and it outlined a payment schedule for the balance of the revised amount due Mrs. O'Link. The court awarded Mrs. O'Link attorney's fees in the amount of $5,231.05.

II. RULE 60(b)

Mr. and Mrs. O'Link did not designate the particular statute or rule of civil procedure under which they sought relief in the superior court. The statutory provisions for divorce do not provide special treatment for property divisions incorporated within divorce decrees. ⁶ A property division incorporated within a divorce decree is a final judgment and is modifiable to the same extent as any equitable decree of the court. Thomas v. Thomas, 581 P.2d 678, 679 n. 4 (Alaska 1978). Due to the lateness of the parties' motions, they cannot avail themselves of the provision for a new trial under Civil Rule 59. ⁷ Their motions, therefore, are viewed as requests for relief from judgment under Civil Rule 60. ⁸

In his motion for modification of the divorce decree, Mr. O'Link claimed he was ill-advised by his attorney as to what he was required by law to pay Mrs. O'Link. He claimed that he agreed to the parties' stipulation because he was led to believe he would not be "harassed" by Mrs. O'Link when payments were irregular because of his irregular income so long as he made payments as best he could and the total amount was paid within three years. In other words, he entered into the agreement as a result of inadvertence or mistake. Under Rule 60(b)(1), a person is entitled to relief from a final judgment for mistake if the motion is made "not more than one year after the judgment, order or proceedings was entered or taken."

In her motion for modification, Mrs. O'Link claimed that she and the court were not informed of the true values of the couple's property at the time of the divorce. At the hearing on the motions for modification, she testified that during their marriage Mr. O'Link kept secret from her the value of their real property. Mrs. O'Link said she became aware of the true value of the property when she discovered the loan application shortly before the modification hearing. In essence, Mrs. O'Link's claim was based on fraud, misrepresentation, or other misconduct by Mr. O'Link in the valuation of the property. Under Rule 60(b)(3), a person is entitled to relief from a final judgment for fraud, misrepresentation, or other misconduct of an adverse party if the motion is made "not more than one year after the judgment, order or proceeding is entered or taken."

Mr. O'Link's motion for modification was filed two years and five months after the divorce decree was entered. Mrs. O'Link's motion was filed a month later. Under Alaska Civil Rule 6(b) and the identical federal rule, courts do not have the power to enlarge the one-year time limit for motions brought under Civil Rule 60(b)(1)-(3). Alaska R.Civ.P. 6(b); Fed.R.Civ.P. 6(b); Ackermann v. United States, 340 U.S. 193, 197, 71 S.Ct. 209, 211, 95 L.Ed. 207, 210 (1950); Keys v. Dunbar, 405 F.2d 955, 957 (9th Cir.), cert. denied, 396 U.S. 880, 90 S.Ct. 158, 24 L.Ed.2d 138 (1969). See 11 C. Wright & A. Miller, Federal Practice and Procedure § 2866, at 232-34 (1973). Accordingly, we hold that the superior court lacked jurisdiction to grant relief from the judgment in this case for reasons of mistake under Rule 60(b)(1) or of fraud, misrepresentation, or other misconduct under Rule 60(b)(3).

The only other provision under which the O'Links arguably could seek relief from the judgment is subsection (b)(6), the catch-all clause that permits relief for "any other reason justifying relief from the operation of the judgment." Relief under this clause is not limited by any strictly defined time period, but may be granted if the motion is made within a "reasonable" time. Alaska R.Civ.P. 60(b).

Clause (6) and the first five clauses of Rule 60(b), however, are mutually exclusive. Relief under clause (6) is not available unless the other clauses are inapplicable. Klapprott v. United States, 335 U.S. 601, 613, 69 S.Ct. 384, 389, 93 L.Ed. 266, 276, mod. on rehrg., 336 U.S. 942, 69 S.Ct. 398, 93 L.Ed. 1099 (1949). Clause (6) is reserved for extraordinary circumstances not covered by the preceding clauses. ⁹ The purpose of the clause has been described as follows:

In general, relief is given under clause (6) in cases in which the judgment was obtained by the improper conduct of the party in whose favor it was rendered or the judgment resulted from the excusable default of the party against whom it was directed under circumstances going beyond the earlier clauses of the rule....

... The broad power granted by clause (6) is not for the purpose of relieving a party from free, calculated, and deliberate choices he has made. A party remains under a duty to take legal steps to protect his own interests.

11 C. Wright & A. Miller, Federal Practice and Procedure § 2864, at 213-14 (1973) (footnotes omitted).

In Livingston v. Livingston, 572 P.2d 79, 85-87 (Alaska 1977), we relied on Rule 60(b)(6) to affirm a superior court judgment vacating the custody provisions of a default divorce decree. The superior court, acting sua sponte, had filed a motion to open and vacate the judgment for fraud upon the court because the child's mother and her counsel failed to inform the court, at the time of the divorce proceedings, that the child was not...