Olson v. Olson

856 P.2d 482, 1993 Alas. LEXIS 68, 1993 WL 273446
CourtAlaska Supreme Court
DecidedJuly 23, 1993
DocketS-5087
StatusPublished
Cited by6 cases

This text of 856 P.2d 482 (Olson v. Olson) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Olson v. Olson, 856 P.2d 482, 1993 Alas. LEXIS 68, 1993 WL 273446 (Ala. 1993).

Opinion

OPINION

BURKE, Justice.

The question presented in this appeal is whether the appellant’s loss of employment constitutes sufficient grounds for modifying a divorce decree. We hold that it does not in this instance, and affirm the superior court’s denial of Raymond Olson’s motion to modify the decree.

*483 I. FACTS AND PROCEEDINGS BELOW

Raymond and Florence Olson were married in July 1976 in Anchorage. At the time of their marriage, Florence worked for the federal civil service and Raymond worked for ARCO. Florence retired in 1982; Raymond worked for ARCO throughout the parties’ marriage.

When Florence filed for divorce in October 1990, she was 68 years old and Raymond was 58. Her monthly gross income, consisting of her retirement pay and her state longevity bonus, was $600. Raymond’s monthly gross income was $5,436. Both parties claimed considerable monthly expenses.

The parties agreed to a property settlement in June 1991. They presented their agreement to Superior Court Judge Elaine Andrews in open court on June 21, 1991. Under the agreement, Raymond received the parties’ Mercedes, their Anchorage residence and furniture, two Washington lots, a pick-up, a Plymouth, and a $13,500 “credit” for interim spousal support to be applied to his amended tax returns. Raymond was also to receive reimbursement from Florence for medical expenses paid by Raymond and reimbursed to Florence by her insurance carrier. Florence received the escrow account for an Anchor Point property sale, a Plymouth, and the remainder of her pension. The parties’ equally divided Raymond’s IRA, their art and jewelry, their Washington marital property, and Raymond’s ARCO retirement, savings and investment plans.

A divorce decree, which incorporated the property settlement, was signed on August 9, 1991. On August 28, Florence filed a motion for attorney’s fees. Raymond filed his opposition on September 11.

In September 1991, ARCO notified Raymond that it was terminating him as part of a reduction in force program effective November 30. Raymond thereafter filed a supplemental opposition to the attorney’s fees motion, arguing that, due to his termination, the relative economic situations of the parties no longer provided any basis for an attorney’s fee award. In November, the superior court awarded Florence $5,000 in attorney’s fees.

In January 1992, Raymond moved to modify the August 9th divorce decree, arguing that his sudden dismissal justified modifying the property division under Civil Rule 60(b)(1), (2), (5) and (6). This motion was denied, without comment, by Superior Court Judge John Reese. Raymond appealed both the denial of his motion to modify the decree and the attorney’s fee award.

II. DISCUSSION

A. Motion to Modify.

Raymond first argues the case must be remanded because the superior court failed to issue findings of fact when it denied his motion to modify. 1 The Civil Rules do not require the superior court to issue findings of fact when ruling on a Rule 60(b) motion to modify. See Alaska R.Civ.P. 52(a) (“Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 and 56 or any other motion except as provided in Rule 41(b).”). In Headlough v. Headlough, 639 P.2d 1010, 1014 (Alaska 1982), we remanded for findings when the superi- or court failed to explain why it granted a Rule 60(b) motion to modify a divorce decree. We held that such findings were necessary in order “to enable this court to determine the grounds upon which the trial *484 court reached its decision.” Id. In part, we remanded because “we [were] unable to determine the reasons for the trial court’s decision to increase [the husband’s] support payments.” Id.

The present case is distinguishable from Headlough because, here, we are reviewing a denial, not a grant, of a motion to modify the decree. In the case at bar, we can examine the entire record, and can measure the denial against the abuse of discretion standard without findings.

[2,3] Addressing the merits, we note first that Raymond’s Civil Rule 60(b)(1) and (2) arguments are without merit. Raymond argues that his dismissal amounts to a “surprise” sufficient to constitute grounds for relief under Rule 60(b)(1). We read and define the term “surprise” in light of the three other grounds for relief under Rule 60(b)(1), to wit, “mistake, inadvertence, ... or excusable neglect.” 2 Alaska R.Civ.P. 60(b)(1). Courts have traditionally applied this section to cover events that occur prior to entry of judgment, such as faulty filings or miscommunications that result in no actual knowledge of the proceedings, and not to those events which post-date the judgment. See generally 11 Charles Wright & Arthur Miller, Federal Practice and Procedure, § 2858 (1973 and Supp.1993). We will not extend Rule 60(b)(1) beyond its conventional ambit to cover Raymond’s post-decree dismissal.

Raymond’s “newly discovered evidence” argument, made under Rule 60(b)(2), fails for the same reason. In the context of a motion for a new trial, we have held that “for any evidence to come within the category of ‘newly discovered’ such evidence must relate to facts which were in existence at the time of the trial.” Patrick v. Sedwick, 413 P.2d 169, 177 (Alaska 1966). The same reasoning applies to motions to modify under Rule 60(b)(2). See 11 Wright and Miller, Federal Practice and Procedure, at § 2859. Raymond suggests large scale termination decisions, such as ARCO’s, are “normally made well in advance of any announcement” and that therefore “it can be presumed” that his termination was “in existence” at the time of the settlement agreement on June 21, 1991. Such conjecture does not supplant the hard fact that Raymond was not notified of his termination until September 23, 1991, a full three months after the parties agreed to a property division. Therefore, Rule 60(b)(2) does not apply.

Civil Rule 60(b)(5) offers relief from judgment when “it is no longer equitable that the judgment should have prospective application.” Alaska R.Civ.P. 60(b)(5). Only two components of the property settlement in the present case had prospective application; namely, the monthly escrow payments from the Anchor Point property sale and the monthly annuities resulting from the division and distribution of Raymond’s ARCO pension plan. The ARCO pension plan was distributed upon Raymond’s termination. Although the parties agreed to an equal division of this asset, Raymond’s monthly annuities are actually significantly higher than Florence’s as a result of an “enhanced retirement benefit” due to his termination. It is indisputable that the escrow payments from the Anchor Point property sale provide Florence with significant income.

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Bluebook (online)
856 P.2d 482, 1993 Alas. LEXIS 68, 1993 WL 273446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olson-v-olson-alaska-1993.