Stone v. Stone, 5674

• Decision Date: 02 July 1982
• Docket Number: No. 5674,5674
• Citation: Stone v. Stone, 647 P.2d 582 (Alaska 1982)
• Parties: Norman S. STONE, Jr., Appellant, v. Marguerite R. STONE, Appellee.
• Court: Alaska Supreme Court

Page 582

647 P.2d 582

Norman S. STONE, Jr., Appellant, v.Marguerite R. STONE, Appellee.

No. 5674.

Supreme Court of Alaska.

July 2, 1982.

Ronald D. Flansburg, Charles E. Tulin, Anchorage, for appellant.

William D. Artus, Artus & Choquette, Anchorage, for appellee.

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

OPINION

COMPTON, Justice.

Norman and Marguerite Stone were divorced on April 12, 1979.A property settlement incorporated into the divorce decree awarded Norman ownership of a condominium in Hawaii and awarded Marguerite $22,500 in cash to be paid from the proceeds of the sale of the condominium, which, the property settlement recited, the husband had agreed to sell for $125,000.

The condominium sale did not close as scheduled on July 30, 1979.On August 9, after payment on the condominium still had not been received, Norman attempted to cancel the sales agreement.The purchasers filed a suit for specific performance on August 16, 1979.

On October 2, 1979, Marguerite filed suit in the Circuit Court of Hawaii.In her complaint she sought to recover one-half the proceeds from the sale of the condominium, and, in addition, amounts owed on an unrelated promissory note.Marguerite incurred $3,284 in legal fees in that lawsuit.

In February 1980, the specific performance litigation between Norman and the purchasers was settled.Pursuant to this agreement, Norman sold the condominium in March 1980 for a price of $140,000.In July 1980, Marguerite filed a motion in the superior court in Anchorage to modify the divorce decree to award her one-half the difference between the actual sales price and that contemplated in the divorce decree, and to recover her Hawaiian litigation legal fees.

The superior court rejected Marguerite's attempt to characterize her action as a modification proceeding.The court questioned whether the matter isn't "really a petition to reform the agreement?"The court then observed that "the property settlement agreement is a contract, and the rights of the parties under that agreement arise under the law of contract ...."The court viewed Marguerite's motion as an attempt to show either fraud by Norman (lack of intent to sell at the time of the agreement) or breach of contract (by frustration of the sale).Alternatively, the action was seen as alleging a mutual mistake about the value of the property, warranting reformation of the agreement.

The superior court determined that the decree obligated Norman to pay $22,500 to Marguerite on or before July 30, 1979, the date on which the parties anticipated the sale of the condominium.She was not entitled to share in the appreciated value of the condominium.The court awarded Marguerite interest on the amount due since Norman did not tender the $22,500 until March 1980.In addition, the court awarded Marguerite attorneys fees for both the Alaska and Hawaiian litigation.Norman Stone appeals, alleging that it was error for the court to award either interest or attorneys fees.

I.MODIFICATION OF THE DECREE

We first discuss subject matter jurisdiction.Marguerite initiated suits in Hawaii and Alaska principally in order to share equally in the appreciation of the condominium.We first address whether the superior court had jurisdiction to consider Marguerite's proposed modification to the property settlement agreement incorporated into the divorce decree.Neither the parties nor the superior court addressed this issue.¹We are cognizant that this issue need not be resolved to reach the limited issues presented on appeal.Yet, the confusion apparent by the posture of this case suggests to us the need to reiterate the rules governing attempts to modify or reform a property settlement which is incorporated into a divorce decree.

A property settlement incorporated into a divorce decree is merged into the decree, so that the rights of the parties derive from the decree, not the agreement.Helber v. Frazella, 118 Ariz. 217, 575 P.2d 1243, 1244(1978)(en banc);Compton v. Compton, 101 Idaho 328, 612 P.2d 1175, 1180(1980);seeO'Link v. O'Link, 632 P.2d 225, 228(Alaska1981).Principles of contract law are not applicable in an attempt to obtain relief from a final judgment-here, the terms of a property settlement incorporated into a divorce decree.In addition, the statutory provisions for divorce do not, in contrast to the treatment of support or custody orders, ² authorize a court to modify the terms of a property settlement.AS 09.55.220;³seeAllen v. Allen, 645 P.2d 774, (Alaska, 1982).AS 09.55.205.

In the present case, were Marguerite entitled to any relief, she should have sought relief from judgment pursuant to the terms of CivilRule 60(b).⁴We conclude, though, that on the facts of the present case, Marguerite demonstrated no basis for the superior court to afford relief from the final judgment.⁵

Marguerite is barred from seeking relief under Rule 60(b)(1)-(3) because her motion to modify the decree was made on July 21, 1980, fifteen months after the divorce decree was entered.The rule expressly provides that motions pursuant to (b)(1)-(3) must be filed within one year of the judgment.CivilRule 6(b) prohibits a court from enlarging the time constraints imposed by Rule 60(b).⁶

Marguerite is also barred from seeking relief under Rule 60(b)(6).That clause allows relief from a judgment for "any other reason justifying relief from the operation of the judgment."A motion for relief pursuant to (b)(6) is not subject to the one year limitation applicable to motions pursuant to (b)(1)-(3); rather a (b)(6) motion must be filed within a "reasonable time."The relief available under Rule 60(b)(6), however, is exclusive of the other remedies offered by Rule 60(b)(1)-(5).O'Link v. O'Link, 632 P.2d at 229;seeAckerman v. United States, 340 U.S. 193, 197, 71 S.Ct. 209, 211, 95 L.Ed. 207, 210(1950).Marguerite, in essence, alleged fraud, misrepresentation or other misconduct by Norman.Her motion to seek relief would thus be within the ambit of (b)(3).Indeed, the superior court viewed the motion as an attempt by Marguerite to show Norman's lack of intent to sell at the time of the agreement, i.e., a fraud or misrepresentation.Since the motion could have been brought under (b)(3), Marguerite is barred from seeking relief under (b)(6).

We conclude, therefore, that the superior court lacked jurisdiction to grant relief from the original decree.⁷

II.HAWAIIAN LEGAL EXPENSES

The superior court awarded Marguerite her legal expenses incurred in connection with the suit in Hawaii.⁸Marguerite argues that she had to sue Norman because she could not file a lis pendens unless a lawsuit was pending in a Hawaiian court.A lis pendens was required, she argues, in order to protect her interest in the proceeds of the condominium sale.

Marguerite's lawsuit in Hawaii, however, was not undertaken as an attempt to safeguard her rights under the property settlement, but instead as an attempt to expand them.The principal goal of the Hawaiian litigation was to share in the appreciation of the condominium and to recover an unrelated debt.⁹At no point did Marguerite claim that Norman balked at payment of the $22,500 when the sale of the condominium closed.Any finding of fact entered by the trial court to the contrary finds no support in the record and is thus clearly erroneous.¹⁰We conclude, therefore, that Marguerite was not entitled to recover her Hawaiian legal expenses.That portion of the judgment must be reversed.

III.INTEREST

Norman submits that it was improper for the court to award Marguerite interest because the stipulation entered with respect to the Hawaii litigation evinces, at least implicitly, a waiver of interest.We need not address this claim.Instead, we conclude that the court erred in interpreting the decree to require payment of the $22,500 on or before July 30.The property settlement agreement, incorporated into the decree, stated only that Marguerite would be paid $22,500 from proceeds of the sale upon closing.¹¹The parties never submitted that the obligations created by the property settlement agreement were ambiguous.Rather, the superior court independently raised the question of interest.In this context, we conclude that an interpretation of the property settlement agreement was not in issue and, as a consequence, the award of interest was erroneous.¹²

IV.ATTORNEY'S FEES

The final matter is the award of attorney's fees.¹³Our disposition of the issues presented on appeal clearly establish that Norman is the prevailing party.The award of fees to Marguerite is therefore vacated, and the case is remanded to afford Norman an opportunity to seek an award of attorney's fees pursuant to Civil Rule 82.

REVERSED and REMANDED.

MATTHEWS, J., dissents.

MATTHEWS, Justice, dissenting.

I would affirm the judgment of the superior court in all respects.

I

A.The parties' property settlement agreement entered into on April 10, 1979 clearly contemplated that Norman Stone would carry through on the existing agreement under which he was to sell the Hawaii condominium for $125,000.00 with a closing date of July 30, 1980.The trial court found that Norman breached his obligation to timely close the sale of the condominium.The court imposed as a remedy for this breach an obligation to pay interest on the sale proceeds due Marguerite, from the date they should have been paid until they actually were paid.This remedy seems to me to be entirely appropriate and practical.

The majority opinion, however, takes the position that Norman did not have the obligation to carry through on the sale at any particular time.Apparently the majority is of the view that Norman could delay the sale for as long as he wanted.By so doing he could also delay indefinitely his obligation to pay Marguerite the sum she was entitled to while benefitting by the appreciation in value of the unit and by living in it....