STOWERS, Justice.
The superior court granted Brianna Sandberg's Alaska Civil Rule 60(b)(6) motion to vacate a divorce settlement agreement, valued and divided the couple's property, and ordered David Sandberg to pay Brianna's attorney's fees. In granting Brianna's Rule 60(b)(6) motion, the superior court found that Brianna was mistaken in her belief at the time of the parties' settlement agreement that the marital home was David's property. David appeals.
No facts in this record support the superior court's finding that Brianna mistakenly believed she held no ownership interest in the couple's marital home. We therefore reverse and remand the case for the superior court's reconsideration of Brianna's Rule 60(b)(6) motion. We address David's arguments on the valuation and division of property with the understanding that these arguments may be mooted by the superior court's resolution of Brianna's Rule 60(b)(6) motion on remand. Because we reverse the court's ruling on Brianna's Rule 60(b) motion, we also vacate the superior court's attorney's fee award.
David Sandberg and Brianna Sandberg (now known as Brianna Whitney) married in 2002 in Fairbanks. The parties have two children, born in 2004 and 2006. David also adopted Brianna's son from a previous relationship. Throughout the marriage David was the primary income earner, while Brianna cared for the children at home.
Before the parties were married, David began constructing a house on a 1.5 acre lot on Blackberry Drive in Fairbanks. David had an agreement with the former lot owner whereby he acquired one lot and purchased an adjacent 1.5-acre lot. At the time of their marriage in 2002, the house was roofless and not yet inhabitable. David continued to work on the house throughout the parties' marriage. David did the majority of the work involved in building the house, but he acknowledged that "there was some marital effort put into" the house, and Brianna also testified that she did some work on the house both in its construction and decoration. In October 2006 the parties moved into the house, which was then livable although not fully complete.
In May 2011, during the course of the Rule 60(b) litigation, the court granted Brianna's motion for possession of the marital home. At that time the water system needed repair. At trial in August 2011, Brianna and her fiancé testified that they were working on that repair.
Brianna has suffered from depression since at least 2004, about six months after the birth of her second child, and she took prescribed medication for this condition. In spring 2008 she was under a lot of stress because her relationship with David was strained and because a close friend had recently committed suicide. Around this same time, she began experiencing a variety of physical ailments, including abdominal pain, nausea, vomiting, and headaches. Brianna had her gallbladder removed in May 2008, and she underwent a partial thyroidectomy in July 2008. In addition, she suffered from a "diffuse rash" and was diagnosed with cutaneous mastocytosis. Despite this diagnosis, her medical providers were not able to determine the source of all of her symptoms, nor were they able to develop an effective treatment plan to relieve those symptoms. In October 2008 Brianna was referred to the University of Washington Medical Center in Seattle for a bone marrow biopsy, the results of which were inconclusive.
Brianna's illnesses and the uncertainty of her diagnosis caused her significant anxiety. She testified that after her October trip to Seattle did not result in a clear diagnosis, she "spiraled more and more into ... feeling really depressed, feeling really hopeless, feeling really scared."
In early November 2008 Brianna made a second visit to Seattle. Brianna testified that the purpose of the visit was to "find some better medical care and ... just take a break for [her] mind for a week or two" to relieve the stress and anxiety resulting from her illness and uncertain diagnosis. Before she left she told David that she wanted a legal separation and perhaps also wanted to see other people. She arranged to stay in Seattle with a man she had met during her first visit in October with whom she had been corresponding. Shortly after Brianna arrived in Seattle, she received divorce papers from David. She quickly ran out of the money she had brought with her and did not have access to any other marital funds.
In March 2009 Brianna returned to Fairbanks. David and the children moved out of the house before Brianna arrived and she moved in. Brianna testified that she had difficulty living at the house alone because she did not have a vehicle, she lacked sufficient heating fuel, and she quickly ran out of food. Further, upon her return to Fairbanks she felt she had "no support system anymore because [she had] been completely ostracized" from family and friends.
In mid-March the superior court granted David's motion for temporary orders, awarding David primary physical custody of the children and sole use of the family home. As a result Brianna departed the home in late March. Before doing so she negotiated with David's attorney, John J. Connors, to receive a $3,000 advance on the divorce settlement, as well as possession of the parties' Ford Expedition vehicle. After leaving the home, she used $500 of the $3,000 advance to pay
Brianna visited a health clinic in March 2009 with a variety of symptoms apparently caused by a flare-up of her cutaneous mastocytosis, but by April her health had improved and she found a job as a waitress. However, by June she had to leave her job because she "started to get really sick" again and had been missing days at work.
On May 28, 2009, Brianna admitted herself to Fairbanks Memorial Hospital for four days due to anxiety. Brianna testified that throughout the summer of 2009, after leaving her job at the restaurant, she "was basically homeless," staying with friends, in her car, or at a rescue mission.
David filed for divorce in November 2008. Between January and March 2009, Connors prepared a first draft of a settlement agreement between David and Brianna. When she returned to Fairbanks in March, Brianna read the draft agreement and asked that several modifications be made. Connors prepared a second draft, and again Brianna requested changes. When the parties reached the third and final draft, Brianna sat in Connors's office and read through the agreement before signing it. Brianna testified that throughout the drafting and negotiation process she did not consult with an attorney of her own.
According to Connors, during the drafting and negotiations Brianna's demands "primarily focused on obtaining money quickly," and she proposed that she receive David's interest in his 401(k) retirement account. He stated that Brianna "was adamant about what she wanted and [that she] needed the money as soon as possible," and she "would not sign the agreement unless it met her requests." Further, Connors stated that he "never had a suggestion or indication that [Brianna] did not understand the consequences of the agreement she participated in drafting."
Sandra Mayo, Connors's paralegal, testified that she spoke with Brianna over the phone and at Connors's office several times to discuss the settlement agreement. During the meetings at the office, Brianna "was always clear-eyed," "very presentable," and "knew what she had wanted." In particular, Brianna was "adamant" that the agreement not require her to pay child support. Mayo also testified that Brianna "believed that she would get [David's] retirement [money] and [David] would get the house." Brianna "didn't care about what the house was[,] ... she wanted cash so she [could] live and go to school, [and do] what she needed to do."
David testified that during the negotiations he never claimed the house was his separate premarital property. He testified that he and Brianna "talked over and over about the house and ... in her opinion, it was something that [he] should keep because at the time, she [wanted] to move on." Further, David testified that Brianna told him that "you should have the house because you have the kids, [and] it would be good for the children to stay in the house because that's what they're used to."
Brianna testified that the parties never discussed the legal status of the house during their negotiations. She testified that although neither David nor his attorney ever told her that the house was David's premarital property, David "insinuated it throughout the entire paperwork." She also testified that, at the time of the settlement, she "knew [the house] was marital property because I knew we built it together, but ... I think David made it sound like it was his separate property." Further, at the time of the settlement she had "no idea" whether the fact that the house was titled only in David's name had any effect on its legal status.
Brianna signed the settlement agreement on May 15, 2009; David signed it on May 26. The agreement stated that David would be awarded the house, which it identified as "a residence solely titled in David's name, valued at approximately $105,000."
On August 26, 2009, the parties appeared before Standing Master Alicemary L. Rasley. David was represented by counsel; Brianna proceeded pro se. David's attorney, addressing David, summarized the parties' settlement agreement as follows: "You're going to have the real estate — that is, your house and also the vacant lot that you owned before marriage and [Brianna is] going to get ... the liquid asset which is your 401(k)." The parties agreed that the court should adopt the marital property and debt agreement. A decree of divorce was issued on August 31, 2009.
Brianna testified at a later hearing on her Rule 60(b) motion that she received the settlement check in October 2009 and used the money to pay attorney's fees (for her Rule 60(b) attorney), as well as to pay back debts she had incurred over the previous months.
In January 2010 Brianna, now represented by counsel, submitted a Rule 60(b) motion to vacate the parties' settlement agreement. She argued that when she returned to Fairbanks in March 2009 she was very ill and had no source of income or support. She alleged that when she signed the settlement agreement two months later, she "was still suffering from deteriorated health, was mentally unable to comprehend what she was signing, and was no longer able to hold out for an equitable division of property." Further, she argued that "[r]eview of the settlement agreement indicates that [David] received all of the marital assets, including the home and land ... while [Brianna] received an inequitable award of a portion of [David's] 401K." Brianna argued that she should be granted relief from the settlement agreement under Rule 60(b)(1) because of her own "mistake or inadvertence"; under Rule 60(b)(3) because of David's "misrepresentation"; or under Rule 60(b)(6) because "the court is granted the authority to vacate judgments whenever such action is necessary to accomplish justice."
In his opposition to Brianna's Rule 60(b) motion, David argued that the agreement was fair to Brianna, that she actively participated in the negotiations of the agreement, and that she was fully cognizant of the terms of the agreement.
Beginning in June 2010, the superior court held a series of hearings on Brianna's Rule 60(b) motion, during which the court heard testimony concerning the circumstances leading up to the parties' settlement agreement. Both parties were represented by counsel. In March 2011 the court issued an order granting Brianna's Rule 60(b) motion and vacating the settlement agreement. The court found that Brianna "may be" entitled to relief under 60(b)(1), but that "[e]ven if Brianna was not entitled to relief under Civil Rule 60(b)(1), the extraordinary circumstances of this case entitle Brianna to relief... under Civil Rule 60(b)(6)."
With respect to Rule 60(b)(6), the court found that "[a]lthough not all of the equitable factors need be present for the court [to] set aside a final property division, all factors are found here." First, the court found that "the fundamental, underlying assumption of the dissolution agreement has been destroyed" because when the parties signed the agreement "at least Brianna believed that she held no interest in the house," when in fact the house had been "transmuted into marital property during the parties' marriage." Second, the agreement was "poorly thought out by Brianna" because at the time of the agreement she "desperately needed money from the settlement to provide for her immediate basic needs. She was homeless and unemployed, physically and emotionally unstable, and with limited financial and emotional support." Third, the agreement "was reached without the benefit of counsel" on Brianna's side. Fourth, "the property in dispute [the house] was the parties' principal asset." The court commented that it "grants Brianna's Rule 60(b) motion with reluctance[,] but the circumstances of the settlement are severe in respect to Brianna's situation."
David filed a motion to reconsider that the court denied in April 2011. In May 2011 the court granted Brianna's motion for possession of the marital home during the pendency of the action.
Following the court's vacating of the settlement agreement, the parties were unable to reach a new agreement concerning the property division. The court held a three-day trial in August 2011, during which it heard additional testimony concerning Brianna's health and the status of the home, as well as testimony concerning the parties' relative contributions to the maintenance of the home following the separation. In March 2012 the court issued findings of fact and a final order regarding the property distribution, incorporating by reference its previous order granting the Rule 60(b) motion. The court "conclude[d] that [Brianna's] earning capacity and her current personal situation require[] an unequal division of property, in lieu of alimony."
The court determined that the house was the parties' principal asset and ordered that the house should be sold to a third party, with David receiving 40 percent of the net proceeds and Brianna 60 percent.
Finally, the court ordered that "[b]ecause of the disparity of the incomes of the parties, [David] will pay [Brianna] the sum of $7,000.00 towards her attorney's fees, which are represented to be approximately $25,000.00."
David appeals, arguing that Brianna's agreement to the property settlement was voluntary and fair and that the court erred both in its property valuation and in its award of attorney's fees. Brianna has not participated in this appeal.
We review a trial court's grant of a Rule 60(b) motion for an abuse of discretion.
The superior court exercises broad discretion in property division cases.
The superior court found that Brianna "may" be entitled to relief under Rule 60(b)(1) and that, even if she was not so entitled, she was entitled to relief under Rule 60(b)(6).
Rule 60(b) allows relief from a judgment, order, or proceeding for the following reasons:
"`Rule 60(b), in its entirety, attempts to preserve the delicate balance between the conflicting principles that litigation be brought to an end and that justice be done in light of all the facts.'"
The two subsections at issue in the instant case are (1) and (6).
Here, the trial court based its Rule 60(b)(1) determination on its finding that Brianna made a unilateral mistake. We begin by examining what constitutes "mistake, inadvertence, surprise or excusable neglect" under this subsection.
Our decisions, "like those of [our] federal counterparts, have neither expressly distinguished the separate grounds for relief under Rule 60(b)(1)[,] nor set forth tests for them."
Here, the superior court examined Brianna's Rule 60(b)(1) claims under the rubric of "mistake," and found that Brianna mistakenly believed the parties' house was David's separate property.
At most, this statement, made months after the settlement, is evidence of what David believed about the house. The court did not cite, and we have been unable to discover in the record, any evidence that Brianna believed the house belonged solely to David. On the contrary, Brianna testified at the time of the settlement that she "knew [the house] was marital property" because she knew the couple "built it together." (Emphasis added.) Further, Brianna testified she and David never discussed whether the house was marital property and that she had "no idea" about whether the house's title had any effect on its legal status. David testified that he and Brianna "talked over and over about the house and ... in her opinion, it was something that I should keep because at the time, she was wanting to move on." David also testified Brianna told him "you should have the house because you have the kids, [and] it would be good for the children to stay in the house because that's what they're used to." Similarly, Sandra Mayo testified Brianna "didn't care about what the house was[,] but she wanted cash so she [could] live and go to school, [and do] what she needed to do." Finally, when Brianna signed the settlement agreement, she did so having read the provision stating that the cash payment she received was "specifically in exchange for [Brianna's] knowing waiver of any and all claims against the residence/real property."
In short, there is no evidence in the record that Brianna believed the house belonged only to David at the time of the settlement. By all accounts Brianna was either fully aware that she held an interest in the house, was not entirely certain about the status of the house, or simply did not care about the house's marital or non-marital status because her primary goal in the settlement was to obtain up-front, liquid assets. Having reviewed the record before us, we must conclude that the court's determination that Brianna "may" be entitled to relief under Rule 60(b)(1) because she mistakenly believed "that the parties' marital home was David's separate property" was based on a clearly erroneous factual finding.
Rule 60(b)(6) provides for relief for "any other reason justifying relief from the operation of the judgment." The clause is reserved for "extraordinary circumstances" that are "not covered by the preceding clauses."
In Foster v. Foster, we affirmed a grant of relief under Rule 60(b)(6) from a property division when: (1) the fundamental,
Here, the superior court found the facts of this case met all four Foster factors. With respect to the first factor, the court found that "the fundamental, underlying assumption of the dissolution agreement has been destroyed" because when the parties signed the agreement "at least Brianna believed that she held no interest in the house," when in fact the house had been "transmuted into marital property during the parties' marriage." As discussed above, it was clear error for the court to find that Brianna believed the house was David's separate property, as there is no evidence in the record to support this finding. Again, Brianna herself testified that at the time of the settlement she knew the couple "built [the house] together" and David testified that he and Brianna "talked over and over about the house" and Brianna told David to keep it because she wanted to move on. Brianna also thought about the needs of her children at the time, knew David had custody of them, and wanted David to have the house in part to provide for the needs of the children. This record reveals, simply, that Brianna sought a settlement agreement that gave her readily-available liquid assets in the form of David's 401(k) asset and David's payment of Brianna's outstanding medical bills. As previously noted, Rule 60(b)(6) "does not allow trial courts to indulge a party's discontent over the effects of its bargain,"
Because there is no evidence that Brianna believed the house was David's separate property, there is also no evidence such a belief was a fundamental, underlying assumption of the parties' agreement. The superior court's analysis of Brianna's motion under Rule 60(b)(6), then, was based on a clearly erroneous factual finding. Because the superior court's decision granting relief to Brianna under Rule 60(b)(1) and 60(b)(6) rested on the same clearly erroneous factual conclusion, we reverse the court's Rule 60(b) order and remand the case for the court to reconsider Brianna's Rule 60(b) motion consistent with our opinion.
David argues the court made several errors in its valuation and division of the property in its final order. First, he argues the court "should have valued [the home] as of [the parties'] agreed separation date, November 2008, which would have separated out the
In Ogard v. Ogard we established that "[o]rdinarily ... the date of valuation ... should be as close as practicable to the date of trial."
Here the superior court, in accord with the general rule set forth in Ogard, determined the value of the home at the time of trial and estimated that it was worth between $120,000 and $150,000. The court left the exact amount to be determined by the sale price. The court acknowledged that David made improvements to the house, but found that "the parties have both done post-separation work on the house, and that any work done on the house that augmented the value of the house ... will be left untouched by the court because of the difficulty in figuring out the proportionate shares of the work and the valuation (assuming [Brianna] was able to repair the septic system)." The court also found that the "benefit [David] received from living in the house balances against the amounts he put into improving the house when he lived in the house."
The superior court correctly applied the general principles of valuation, but the findings underlying that application are inadequate. In particular, the court did not explain why it would have been too difficult to determine the value of the proportionate shares of the work both parties performed on the house post-separation. On remand, if the superior court again grants Brianna Rule 60(b) relief and reinstates its prior property division, the court must reconsider the relative value of the repairs and improvements each party made to the home post-separation. If indeed such a valuation proves too difficult to determine, the court will be required to provide an explanation of why this is so, such as incomplete records or conflicting testimony.
"[W]here the use of marital property after separation effectively excludes the other spouse, the rules of cotenancy require payment to the marital estate of the fair market rental value for use of the property."
Here the parties separated and Brianna left the home in late 2008. In March 2009 Brianna returned to Fairbanks. David and the children moved out of the house prior to Brianna's arrival and she moved in. In mid-March the superior court granted David's motion for temporary orders, awarding
As above, if the superior court grants Brianna Rule 60(b) relief and reinstates its prior property division, the court must also address the relative rental value of the home post-separation and determine whether there should be any credit or set-off to account for the fact that the parties each lived in the house rent-free.
As noted above, in Ogard we established that marital property is to be valued at the time of trial or, in some instances, at the time of separation. Here, the value of Brianna's cash distribution was $0 at the time of trial because Brianna had spent the funds by that date. The value of the funds at the time of separation was approximately $32,936.00, or $24,523.69 net received, according to the findings of the superior court. The court chose to value the payment at the time of separation and credit that value against Brianna in the final property division.
Because we are reversing the superior court's Rule 60(b) order and remanding for further proceedings, the court's award of attorney's fees must also be vacated. The court shall reconsider the issue of attorney's fees in light of its findings on remand.
We REVERSE the superior court's grant of Rule 60(b) motion relief, VACATE its attorney's fee award, and REMAND for further proceedings consistent with this opinion.
Here, Brianna corresponded with David's attorney, Connors, during the course of her medical troubles, from the moment she negotiated a $3,000 advance on the divorce settlement to her final settlement award. She participated in and demanded two re-drafts of the original settlement agreement from Connors. When the parties reached the third and final draft, Brianna sat in Connors's office and read through the agreement before signing it. Paralegal Sandra Mayo testified Brianna "was always clear-eyed," "very presentable," and "knew what she had wanted" during the meetings at the office. In particular, Brianna was "adamant" that the agreement not require her to pay child support.