Livingston v. Livingston

• Decision Date: 02 December 1977
• Docket Number: No. 2825,2825
• Citation: 572 P.2d 79
• Parties: Candace J. LIVINGSTON, Appellant, v. Donald R. LIVINGSTON, Appellee.
• Court: Alaska Supreme Court

Page 79

572 P.2d 79

Candace J. LIVINGSTON, Appellant, v. Donald R. LIVINGSTON, Appellee.

No. 2825.

Supreme Court of Alaska.

Dec. 2, 1977.

Robert H. Wagstaff, Wagstaff & Middleton, Anchorage, for appellant.

Wayne Anthony Ross, Anchorage, for appellee.

Before BOOCHEVER, C. J., and RABINOWITZ and CONNOR, JJ.

OPINION

RABINOWITZ, Justice.

The controlling question presented by this appeal concerns the propriety of the superior court's vacating a previously entered default divorce decree. Factually, the case is unusual and therefore warrants detailed reference at this point.

In May 1973, appellant Candace Livingston filed a complaint for divorce in the Superior Court of the State of Alaska. The complaint asserted, in part, that one child, Carrie Ann Livingston, was born of the marriage. It was further alleged that Candace was a fit and proper person to have custody of the minor child, and that appellee Donald R. Livingston should be awarded reasonable rights of visitation. Counsel for Candace also filed with the superior court a motion to permit service by publication and an affidavit of diligent inquiry. Subsequently, Candace's counsel filed an application for entry of default which was accompanied by his affidavit in support of the application. Appellee Donald Livingston's default was thereafter entered by the clerk of the superior court. The matter then came on for default hearing before Superior Court Judge William H. Sanders.

In his findings of fact, Judge Sanders found that Candace "is a fit and proper person to have the care, custody and control of the minor child of the parties and that defendant should have reasonable rights of visitation with said child." The superior court's decree, which was entered on March 8, 1974, provided, in part, that Candace "is hereby granted sole custody and control of the minor child of the parties . . . with reasonable rights of visitation to the defendant."

Approximately three months after the entry of the decree, Superior Court Judge Harold J. Butcher, acting sua sponte, filed a "Motion to Open and Vacate Judgment." Concurrently with this motion Judge Butcher entered orders to show cause which required Candace and her counsel to appear at a stated time and show cause why the subject case "should not be opened and the judgment entered therein be considered a subject for vacating." In his motion to open and vacate, Judge Butcher asserted that counsel for Candace, as well as Candace individually, had committed fraud upon the court in the divorce proceeding which they had instituted in the superior court. Judge Butcher grounded his allegations of fraud on essentially two aspects of the case. First, he asserted that the affidavit of diligent inquiry which had been filed by Candace's counsel in support of the motion to permit service by publication was fraudulent. Second, Judge Butcher alleged that since the minor child of the parties was at all times residing in the State of Oregon with her father from shortly after filing of the complaint until entry of the divorce decree, the failure of Candace and her counsel to reveal the child's location constituted fraud upon the court. In Judge Butcher's view, this non-disclosure constituted fraud upon the court because the Superior Court of Alaska lacked jurisdiction to make any custody determination as to the parties' minor child if the child was not at the pertinent times a resident of the State of Alaska. ¹

Hearings were held on Judge Butcher's "Motion to Open and Vacate Judgment" before Superior Court Judge C. J. Occhipinti. At the conclusion of the hearings, Judge Occhipinti ruled that there had been a fraud perpetrated upon the court in that the superior court had been misled as to whether it had jurisdiction to award child custody and that counsel for appellant Candace Livingston had filed a false affidavit. ² In his decision, Judge Occhipinti stated, in part:

From outward appearances the Complaint recited simple basic facts found in most ordinary divorce actions.

Subsequently, . . . Judge Butcher, . . . received information that some irregularities may have existed in obtaining the divorce, which resulted in a motion made by Judge Butcher to open and vacate the Judgment . . ..

In the Findings portion of his decision, Judge Occhipinti found, in part:

1. That the affidavit filed by Mr. Wagstaff on June 19, 1973, alleging diligent inquiry did not comply with Alaska Civil Rule 4(e). Further, that the statement that both Mr. Wagstaff and his client had exhausted all avenues known to him and to his client was untrue.

4. That at the time of the hearing before Judge Sanders on March 8, 1974, the Plaintiff and Mr. Wagstaff did not advise the Court of the location of the minor child of the parties; that said minor child was at that time with her father in Oregon and had been there since prior to the filing, and that both Mr. Wagstaff and the Plaintiff knew this.

7. That Mr. Wagstaff proceeded to finalizing the matter in order to obtain the custody of the minor without fully advising the Court that another action had (been) commenced by the Defendant in Oregon. That this information was communicated to Mr. Wagstaff by Defendant's attorney on August 27, 1973.

In its conclusions of law, the superior court determined:

1. That the Decree obtained by the Plaintiff was obtained by virtue of fraud on the Court.

3. That Mr. Wagstaff was negligent in the preparation and use of the affidavit and did not candidly admit to the Court all the facts of the hearing on March 8, 1974. ³

Appellant Candace Livingston now appeals, seeking reinstatement of the original divorce decree in which she was granted custody of the parties' minor child. In this appeal Candace argues that the superior court's order to show cause was improper and denied both appellant and her counsel due process of law; that proper service was effected upon appellee Donald Livingston; that the superior court had jurisdiction to award child custody in the case at bar; that fraud was not perpetrated upon the superior court; and that denial of certain discovery motions made by appellant and her counsel constituted an abuse of discretion on the part of the superior court.

Mallonee v. Grow, 502 P.2d 432, 439 (Alaska 1972), established that the appropriate standard of review for trial court resolutions of claims for relief grounded on fraud upon the court is abuse of discretion. Specifically, in Mallonee we said:

The superior court's determination that Mallonee's actions constituted fraud on the court cannot be disturbed unless we are convinced that it has abused its discretion . . . . ⁴ (footnote omitted)

In Allen v. Bussell, 558 P.2d 496, 500 (Alaska 1976), we noted that the cases in which fraud upon the court has been found usually involve " 'the most egregious conduct involving a corruption of the judicial process itself.' " ⁵ Professors Wright and Miller observe:

(T)he courts have refused to invoke this concept in cases in which the wrong, if wrong there was, was only between the parties in the case and involved no direct assault on the integrity of the judicial process. Nondisclosure by a party or his attorney has not been enough. ⁶ (footnotes omitted; emphasis added)

Based on our review of the record in this case, we have concluded that the superior court abused its discretion in determining that appellant Candace Livingston and her counsel committed a fraud upon the court. In our view, the alleged fraudulent conduct does not approximate the level of egregious conduct necessary to support a holding that fraud had been perpetrated on the superior court.

First, with respect to the mode of service of process on appellee Donald Livingston and the affidavit of diligent inquiry of appellant's counsel which was filed in connection therewith, we are of the view that any deficiencies in the subject affidavit do not amount to a corruption of the judicial process; nor can such asserted deficiency be characterized as egregious. ⁷ Given the fact that appellee Donald Livingston had actual notice of the pendency of divorce proceedings in the Superior Court of the State of Alaska, we fail to discern how he was prejudiced by any deficiency in counsel's affidavit of diligent inquiry. Absent any real prejudice to the party allegedly affected, we conclude that at best a slight case has been presented for holding that either appellant or her counsel engaged in egregious conduct which involved corruption of the judicial process itself.

The record shows that after the superior court had entered an order permitting service by publication, counsel for appellant received a letter from Jeffrey Noles, a Portland, Oregon, attorney, advising that he represented Donald Livingston regarding his marital difficulties; that Livingston did not know whether counsel for Candace had in fact filed the complaint in the courts of Alaska and wished to be advised; that counsel for Candace should "not expect (Donald) . . . to make an appearance and waiver as far as jurisdiction of . . . Alaska's courts;" and that the custody of the child "will ultimately be decided here in Multnomah County." Counsel for appellant testified that in subsequent telephone conversations he had with Mr. Noles during the summer of 1973, Noles informed him that Donald Livingston would not submit himself to the jurisdiction of Alaska's courts and that he, Noles, would neither reveal the whereabouts of Donald Livingston nor accept service of process for Livingston. Appellee's attack on what we choose to characterize as minor failures in the nature of technical non-compliance of the affidavit of diligent inquiry with the provisions of Civil Rule 4(e)(1) does not change the facts that Donald Livingston received actual notice of the pending divorce action; that he received such notice in ample time to appear and defend against any aspect of the relief demanded; that he deliberately refused to appear, defend, or submit himself to the...