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.
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.
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.
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
In October, 1979, a hearing was held in the superior court.
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.
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.
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 physically present in Alaska. Id. at 81. We found clause (6) was the applicable rule in the unusual circumstances of that case and noted that the rule was to be liberally construed, particularly with regard to default judgments. Id. at 85. The child's physical location was material to the issue of the court's jurisdiction to enter a custody decree. Further, our commitment to the paramount criterion of the best interests of the child in the resolution of custody issues justified invocation of Rule 60(b)(6). Id. at 86.
Though we recognize 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 do not find extraordinary circumstances sufficient to justify invocation of clause (6) in the present case. E.g., Stradley v. Cortez, 518 F.2d 488, 494-95 (3d Cir.1975); 11 C. Wright & A. Miller, Federal Practice and Procedure § 2864, at 218-20 (1973). Mr. O'Link's claim that he was misinformed by his attorney as to the rigidity of the payment schedule fits neatly into subsection (b)(1). The record does not show that he was unduly hindered in his attempts to protect his own interests.
Similarly, Mrs. O'Link's assertions that Mr. O'Link failed to disclose the true value of the marital property at the time of divorce fits neatly into Rule 60(b)(3). Therefore, relief from the judgment on Mrs. O'Link's motion would be inappropriate under clause (6). The only other ground for relief available to her would be for fraud upon the court under the express saving clause in Rule 60(b).
Based on our review of the record, we conclude that in this case the fraud, if any, was only between the two parties and did not involve a direct assault on the integrity of the judicial process. We find, therefore, that granting relief from the judgment because of fraud upon the court would be an abuse of discretion.
In summary, the parties did not designate the particular rule of civil procedure under which they sought modification of the property provisions of the divorce decree. The superior court did not indicate the grounds on which it granted relief. We have concluded that relief from the judgment in this case would properly have been granted only under clause (1) or (3) of Civil Rule 60(b). Because the parties failed to comply with the one-year time limit of those subsections, the superior court lacked the power to grant the requested relief.
III. ATTORNEY'S FEES AND COSTS
The superior court awarded Mrs. O'Link attorney's fees and costs in the amount of $5,231.05. Mr. O'Link argues that the court erred in including fees and costs incurred by Mrs. O'Link in previous litigation between the parties. At the hearing, the judge said his award would include "all costs and attorney's fees incurred to date and that includes to seek payment of previous amounts of property and child support."
We are unable to review the award because the record contains no evidence of the actual fees and costs which Mrs. O'Link incurred in defending Mr. O'Link's motions for modification of the arrearages judgment and for modification of the divorce decree. We note that the superior court has broad discretion in awarding costs and attorney's fees under Civil Rule 82.
The superior court judgment, insofar as it modifies the property provisions of the divorce decree, is REVERSED. The award of attorney's fees is REMANDED for reconsideration consistent with this opinion.
In the loan application he listed the property values as follows:
Lot 11, Block 1, Lakeshore Subdivision: Present market value: $89,500 Unpaid balance on loan: 89,000 Lot 1A, Addition No. 1, Alice Subdivision: Present market value: $45,000 Unpaid balance on loan: 14,643 Lots 8 & 9, Block 6, T.A. Smith Subdivision: Present market value: $145,000 Unpaid balance on loan: 59,000
He listed his net worth as $196,306.85.
See Stradley v. Cortez, 518 F.2d 488, 492 (3d Cir.1975).
11 C. Wright & A. Miller, Federal Practice and Procedure § 2864, at 221-22 (1973) (footnote omitted).
We find that in an action such as this, when a party seeks modification of an arrearages judgment and of the property division in the divorce decree, the award of costs and attorney's fees is appropriately made under Civil Rule 82.