*1 accomplish its suited doctrine seems well
goal. that the risk of emotion-
We therefore hold severing inherent in rela-
al harm child’s parent cannot psychological
tionship with a invoking the doc-
itself suffice as a basis by estoppel; support a
trine of
finding estoppel, the evidence must show prejudice.47
financial
III. CONCLUSION the trial court
Because we conclude standard, legal
relied incorrect we on an and REMAND this
REVERSE the order hearing on On
case for a further this issue.
remand, estoppel superior court find
only upon showing that K.’s reliance on in finan- parental conduct resulted
B.E.B.’s prejudice.
cial DIXON, Appellant,
Irvin K. POUNCY, Appellee.
Francine D.
No. S-7645.
Supreme Court of Alaska.
May Wright, prejudice, 47. To that decision. me extent that overrule adopting be read as the emotional standard harm *2 Goff,
Melinda D. Miles and Darin B. Miles Goff, P.C., Anchorage, Appellant, & Dixon, se, pro Anchorage. Irvin K. Wendlandt, Attorney
Diane L. Assistant General, Botelho, Anchorage, and Bruce M. General, Juneau, Attorney Appellee. MATTHEWS, Justice, Before: Chief COMPTON, EASTAUGH, FABE, and BRYNER, Justices.
OPINION COMPTON, Justice.
I. INTRODUCTION appeals Dixon court’s 60(b) denial of his Civil Rule set portion of a aside the 1993 Decree of Divorce ordering declaring him the father of pay support. him child We conclude superior court when abused its discretion deny it relied Because motion. we cannot Ir- matter affirm the order of law 60(b) motion grounds, vin’s Rule on alternate pro- it and we reverse remand for further ceedings. AND
II. PROCEEDINGS FACTS mar- Irvin Dixon Francine Pounce1 30, 1988, January ried March On Pouncy” Appellee’s signed throughout brief. 1. Francine referred to as "Francine Francine pursuant to Rule 90.3 and to Irvin’s name month Civil gave birth to C.D. birth certifícate as her half of uninsured healthcare ex- appears on C.D.’s one C.D.’s penses. father. began re- February 1988 Francine
In September moved for an order Dependent with Chil- Aid tó Families ceive contempt of court for holding Francine in *3 (AFDC). periodically received dren She by of Divorce again violating the Decree February from support for C.D. AFDC op- of Francine denying him visitation C.D. the 1996. In December 1988 until November posed the order to show cause and moved (CSED) Division Support Enforcement Child support In of her modify Irvin’s visitation. pay per notified Irvin that he should $292 opposition modify, Francine and motion to per support and month month in child $146 that had stated that there was evidence Irvin Department accrued debt. The towards his superior In C.D. November the abused (DOR) upheld requir- the order of Revenue contempt in her found Francine “for court support pay the and arrears. ing Irvin to permit faith and willfull refusal to [sic] bad 17, 1993 and Novem- visitation between June divorce. In August In 1992 Irvin filed for 15, 1993.” The court further ordered ber complaint for divorce Irvin stated: his appropriate present at all that an adult be the issue of this “There is one child born during times visits between Irvin and C.D. [C.D.], namely: marriage, whose date of January 1988.” He asked for birth is disputes Following continued over visita- joint custody an- legal of C.D. Francine’s Francine, Irvin, custody, and the tion and allegation that there was a swer denied the single-locus probe DNA child submitted to marriage. the child born issue paternity. The tests excluded testing for divorce, Shortly after filed for Irvin January Irvin as the father of the child. On stipulated to an interim custo- 22, 1996, court, and Francine Irvin moved the dy and visitation order. The order stated 60(b), por- to set aside the joint legal that Francine and Irvin had custo- “which tion of the 1993 Decree of Divorce C.D., dy physical but that Francine had that he the of [C.D.].” determined father custody. gave The order Irvin visitation only support setting in evidence rights. problems A arose con- number of DNA aside the Decree was the 1995 test In cerning Irvin’s visitation of C.D. October which concluded that he was “excluded from why cause Irvin moved for an order to show being biological father of Fran- [C.D.].” the contempt Francine should not be held oppose The court cine did not the motion. violating granting the him visitation order request treated motion, rights. support In he of his stated and denied it. The court that Francine was that he was the plaintiffs held that “the motion for and that Francine had de- father by DENIED as the from barred manded blood tests be taken. The judicata.” court stated doctrine of res judgment against court entered a judg- that the Decree of Divorce a final “was violating the terms of the visitation order. adjudicated Irvin K. ment of the court which pay attorney’s It ordered her to a fine and Furthermore, Dixon the father of [C.D.].” fees. judica- that the of res the court held doctrine require ta that a claim have been does July In court issued a rather, actually litigated; can Decree of Divorce. The court found that party relitigating that also bar a from claims C.D. was a child born the issue of the mar- litigated during pro- riage. The court also found that it was in he could have parties ceedings. have found that Irvin had C.D.’s best interests fully litigate “joint legal custody pursuant opportunity had a clear terms of pro- agreement.” paternity during The court issue of the divorce oral settlement precluded from pay support per ceedings, ordered Irvin to child and thus Irvin was $50 allowing per- signed Pounce.” Francine her November 1993 a release form DNA tests to be Pouncy.” We refer driv- sworn affidavit as “Francine Pouncé.” formed as “Francine Francine’s er's license states that her name is “Francine to her as Francine. relitigating appeal litigating the issue now. This fol- judica- issue of Res ta preclusion lowed. consists of both claim and issue preclusion. preclusion “prevents Claim January superi- 1997 CSED moved the party suing from on a claim which has been modify Di- court to the 1993 Decree of previously litigated judgment by to a final comply vorce to with Civil Rule 90.3. CSED precludes ... and the assertion alleged that requir- the administrative order parties any legal theory, cause of per month2 child $146 action, or defense which could have been a material warranting asserted that action.” 18 James Wm. portion modification of the Decree of al., Moore et Moore’s Federal Practice Divorce required pay only Irvin to $50 (3d 1997). § 131.10[l][a] ed. A claim in- per support. month in In 1997 CSED con- cludes “not actually those matters ad- tacted the court records division to deter- *4 by prior judgment, dressed the but those modify mine the status of its motion to matters which could have been in raised that divorce decree. It learned that Irvin was 131.10[3][c], § action.” Id. at 131-19. Issue appealing denying the 1996 order his Rule preclusion, hand, “prevents on the other re- 60(b) then motion. CSED moved this court litigation of actually litigated issues and nec- participate appellee for leave to as the in essary suit, for the outcome of the even appeal. Irvin’s CSED’s motion.3 if the current action involves different 131.10[l][a], § claims.” Id. at 131-19. III. DISCUSSION judica- The court decided that res A. Standard Review ta barred from relief from the preclusion grounds. on claim This court deny reviews an order 60(b) court stated that “[a] a Rule if fundamental tenet of motion to determine judicata precludes doctrine is that it trial court abused relit- its discretion. See Bene igation Alaska, parties only between the same Key 489, dict v. Bank 916 P.2d 491 (Alaska 1996). claims which pro- were raised the initial Reversal of the trial court “is ceeding but also of those justified relevant claims only if this court concludes the trial which could have been then.” Fur- raised clearly court was mistaken.” v. Grothe Olaf thermore, the court (Alaska found that “the son, 1983). issue 611 How complaint was raised in the ever, court’s determination of answer, that Irvin K. Dixon had a clear judicata whether the doctrine applied of res opportunity fully litigate pa- the issue of legal question is “reviewable under the ternity precluded relitigat- and is now from ‘independent judgment’ standard.” Cox v. ing the issue.” Cox, (Alaska 1994). “All questions of law are reviewed de novo with Irvin’s motion for from this adopting the rule of law 60(b) Decree of Divorce persuasive in light precedent, most reason See, e.g., was a direct attack on the Decree. policy.” Id. (3d Moore, 1997) (“A §at 131.02[l][a] ed. judicial proceeding direct attack on a an 60(b)
B.
Rule
Irvin’s
Motion Should Not
corrected, annulled,
attempt
to have it
re
Have Been Denied Based on Res Ju-
versed, vacated or declared
A liti
void....
dicata.
gant may
also seek to have the
60(b)].”).
court’s order
vacated under
Direct at
[Rule
60(b)
Irvin’s Rule
motion was
judgments,
based
on tacks on
such as motions for re
ground
judicata
60(b),
that res
barred him from
subject
lief
“are not
sequence
leading up
proposes
adjustment
2. The
of events
to CSED
that: "CSED
an
in the child
determining
support
per
amount,
$146
that Irvin owed
month in
in accordance with the child
Finding
is uncertain. A 1988 Notice and
support guidelines,
$146
to:
for 1 child.”
Responsibility
of Financial
stated that Irvin owed
per
ongoing support
$292
per
$146
month
appellee throughout
opin-
3. We refer to the
this
month toward his accrued
A
debt.
1996 Notice
ion as CSED.
Proposed Adjustment
Support
in Child
stated
60(b) motion,
court stated:
funda-
preclusion
“[A]
doctrine.” Id.
this
[sic]
to the claims
judicata
mental tenet of the res
doctrine
appro-
utilize the
Only if
... fails to
“a
precludes relitigation between the
it
statutory procedure for direct attack
priate
that were
parties not
of claims
same
judgment will
barred
[he]
on a
proceeding,
in the initial
but also of
raised
asserting
from
preclusion
claim
doctrine
that could have been
those relevant claims
to accom-
proceeding
new claim a different
same,
then.” Id. This court concluded that
raised
Many
have
Id.
courts
plish the
end.”
opportunity
pres-
“full
had had a
Calhoun
attacks,
attacks
that direct
concluded
55(c)
part
argument as
of his
ent his Rule
can-
judgments pursuant to Civil
60(b) motion;
failure to
initial
[Rule
]
See,
judicata grounds.
on res
not be barred
precludes
raising
him
it
raise it then
from
Pinckney, 752 F.2d
e.g.,
v.
Watts
now.”
Id.
(9th Cir.1985) (holding that Rule
at-
direct, not collater-
judgment was
tack on the
judicata
from
Res
thus barred Calhoun
judicata
al,
of res
60(b)
and that
doctrine
motion,
“[t]he
bringing a
because
second
judg-
attacks on
apply
does not
to direct
he could have asserted the issue
ments.”);
F.2d
Gilligan,
60(b)
Jordon
in his first Rule
second motion raised
Cir.1974) (“[T]he
(6th
of ‘res
contrast,
By
mo-
motion.5
doctrine.
litigant from
preclude
ordering
does
relief from the
tion for
Federal Rule
making a
attack
pay support
[under
first
direct
him to
for C.D. was his
60(b) upon
judgment before the court
previ-
]
motion for relief.
Irvin has not filed
*5
it.’”)
60(b)
(quoting IB James
which rendered
Rule
motion in which he could have
ous
al.,
Moore’s Federal Practice
Wm. Moore et
raised the issue of
(alteration
¶
(2d
1973))
0.407,
at 931
ed.
deny
it
error to
conclude
was
original).
judicata grounds. The
Irvin’s motion on res
standing
cited
v. Green-
court misread Calhoun as
The
Calhoun
(Alaska 1981)
proposition
judicata can
as its authori-
for the
that res
bar
ing,
tion of Rule as matter of law. We (4)the judgment void. could address whether Irvin This (5).7 court has held that is void (1) through under sections under the court “if that ren ineligible Irvin is subject jurisdiction.” it matter dered lacked (S) 60(b)(1), (2), Newkirk, Perry v. matter law. *6 (Alaska1994). judgment a Additionally, can be 60(b)(l)-(3) provides part: personal jurisdiction if void the court lacked may court relieve a ... from a [T]he ifor the court in a manner acted inconsistent order, judgment, proceeding final or (stat process. with due at 1157 n. 5 See id. ing summary Aguc that it is an accurate (1) inadvertence, mistake, surprise or Co., 1352, hak v. Montgomery Ward 520 P.2d neglect; excusable (Alaska 60(b)(4) 1974) say 1354 that Rule to (2) ...; newly evidence discovered encompasses jurisdiction personal lack of (3) ..., misrepresentation, or fraud oth- law). process inconsistencies with due party; er misconduct of an adverse conclude that Irvin relief the order void,
from is the Decree of Divorce State, 969, (Alaska Paragraph 6. P.2d as to law, a See Carlson v. 598 973 J were incorrect as matter of 1979) ("Although may uphold we determined that the appeal have this court on the trial decision incorrect as a independent exist court’s decision if there law, may uphold matter of nevertheless grounds support which a of law as matter which, ground any other decision if there conclusion."). trial court’s law, support matter of by the result reached would court.”); Lowe, see also Lowe v. pursuant granted 7. For Irvin to be to Rule 453, (Alaska 1991) (consid- 817 9 457 & n. 60(b) he defense to the must have a meritorious ering judgment whether to affirm relief from Divorce, Decree of which states that he is the 60(b)(6) grounds on alternate under Rule pay support. him to father C.D. and orders upon of fraud the court 655, Coats, (Alaska See McCall v. 777 P.2d 659 despite superior court “did not fact that find that 1989) ("In justify relief order to under Civil Rule court,” perpetuated upon there was a fraud 60(b) a to the matter on meritorious defense declining but to do because this court was so typically judgment rests which the or order must unable to hold that plained the circumstances com- presented.”). showing test be The DNA fraud-upon-the- of rose the level of law); provides biological father court as a Stordahl v. Govern- Irvin is not C.D.’s matter of Co., 63, Employees potentially ment 564 P.2d 67 n. 16 Ins. with a defense. meritorious (Alaska 1977) ("Even if the trial court's decision 526 pursuant compel challenging pater the conclusion that ineligible
Iran thus 60(b)(4) years nity a matter of law. two and a half after the divorce as a matter of law. unreasonable pursu- may eligible be Lowe, (remanding at See case 60(b)(5). ant to Rule “say because this court could not that a 60(b)(5) part: provides years motion for relief made four and a half upon terms as are On motion and entry judgment per after se unreason party ... just, a the court relieve able.”); Haven, Taylor see also v. 91 Ohio order, judgment, proceed- or from a final (1993) App.3d N.E.2d following for the reasons: (“We prepared are not to hold that a twelve- year judgment a final and a interval between (5) satisfied, re- has been Civ.R.60(B) per movant’s motion is se unrea leased, discharged, a or sonable.”). upon been reversed which it is based has vacated, longer or otherwise or it is no merits, we note that the De On equitable that the should have per cree of Divorce orders Irvin to $50 prospective application; support eigh month until she turns old, dies, marries, years teen or otherwise made within a rea- motion shall be emancipated. The DNA test re becomes sonable time.... sults which that Irvin is not C.D.’s reveal This court has stated that Rule “re- biological prospective father make quires change in ‘some conditions that makes application judgment inequitable. of this See ” inequitable.’ Dewey continued enforcement Gregory, Crowder v. Commonwealth ex rel. (Alaska 1994) Dewey, (“Justice (Ky.App.1988) 745 S.W.2d (quoting Wright A. & Arthur R. Charles destination, is the court’s constant relentless Miller, Federal Practice and Procedure ly pursued. It is not at where a arrived (1973)). § at 207 The DNA test results adjudicates court in a a man actiqn revealing biological that Irvin is not C.D.’s knowing the father of child while full present father in conditions that biological'relationship well that the has been could make continued enforcement disestablished.”). Furtherhiore, clearly However, inequitable. a party order re must move for application prospective lief from the of a 60(b)(5)within a reasonable time. judgment requires the court to balance the *7 brought equities his motion relief and decide whether relief is warrant years Propst Propst, two and a half after the divorce v. decree ed. See (Alaska 1989) by complaint (balancing was entered. As evidenced his n. 9& children’s divorce, post-majority support Irvin believed that was his reliance on a father’s C.D. daughter. biological generosity paying college His belief was rein with the father’s in by expenses reasonably believing forced the 1993 divorce settlement. The while himself court, agreement, open obligation read in referred to not under an to do so enforcement concluding equities Francine as C.D.’s “mom” .Irvin as C.D.’s that “the in this situ Furthermore, agreed require “dad.” on ation that [the motion for father’s] agreement judgment granted”). the record that the settlement relief from be can We “[absolutely] say was the best interest of not as a matter of law that a court facts, coupled balancing equities with the evi [C.D.].” These of this case could not Therefore, thought they that Irvin was that warrant relief. dence his find cannot, law, biological daughter, and that Francine conclude that we a matter was alleging superior that he was not in fact father affirm the court’s denial of Irvin’s C.D.’s C.D., merely keep seeing judgment, him from would for relief from the motion because 60(b)(5) pater support finding challenged that Irvin to Rule be war nity They within a time. thus ranted in this situation.8 reasonable n 60(b)(5), 8. Because we conclude that relief be war- ranted we need not obligation. IV. CONCLUSION this We held that relief was not 60(b)(5) (6). available under Rule or superior We conclude that 60(b)(5), Concerning Rule we wrote that abused its discretion when it denied Irvin’s change in conditions on which the motion on res is based must not reasonably have been fore- Furthermore, grounds. we conclude that we seeable when the was entered. Id. cannot affirm the order mo- at 627. tion for grounds.9 alternate respect thus REMAND this case to the With we stated court to determine whether Irvin this subsection does is entitled not afford relief from party’s litigation relief from the Decree of deliberate Divorce under choices: 60(b)(5). 60(b)(6) “Relief under Civil Rule Specifically, inappro- priate when a court must determine takes deliberate action whether regrets that he later as a mistake.” years two and a half Id. at after the Decree of (citing Hartland, Hartland v. not, Divorce was If unreasonable. it is (Alaska 1989)). prospective court must determine whether application portion of the Decree re- It was reasonably foreseeable at the time quiring Irvin to inequitable. C.D. is of the divorce that Dixon was father
of C.D. He alleged
complaint
in his
that C.D.
was “bom
MATTHEWS,
marriage.”
the issue of
Justice,
this
Chief
with whom
Pouncy
her answer
FABE, Justice,
specifically denied this
joins, dissenting.
allegation.
joined
With the issue thus
Poun-
In my view Dixon is not entitled to relief
cy
demanded blood tests. After the
60(b)(5)
(6).
under either Civil Rule
court entered a
for sanctions
reasonably
Where a
in conditions is
against
violating
order,
her for
a visitation
foreseeable at the time of
Rule Pouncy
stipulated
relented and
to Dixon’s
60(b)(5) relief must be denied. Relief under
paternity.
history
Given this
a reasonable
party’s
is unavailable to undo a
person in
position
Dixon’s
would believe that
litigation
deliberate
choice. That Dixon was
question
there was a
pater-
serious
about his
not the father
of C.D. was not
foresee-
nity.
person
It follows that such a
should
trial,
pled.
able at the time of
it was
Dixon reasonably anticipate
possibility
that his
made a
litigation
deliberate
choice to contest
assertion of
wrong
and his
Pouncy’s claim that he was not C.D.’s father. wife’s assertion that he was not the father
qualify
Therefore Dixon does not
right.
Therefore Dixon has not met the
under either section.
requirement
changed
of Rule
reasonably
conditions not be
foreseeable at
principles
on which this case
should
judgment.
time
decided
are well illustrated
our
decision
(Alaska 1994).
Dewey Dewey,
diligence. grounds Relief on the on a Rule
discovered evidence not available (6)
60(b)(5) or motion.1
Second, essentially claim Dixon’s father, thought
mistake. He
he was C.D.’s
Pelton,
60(B)
carefully
requires
70 Ohio
637 N.E.2d
Strack v.
St.3d
the court
consider
(1994), supports
finality
propositions.
conflicting principles
these
the two
genetic
establishing nonpa-
perfection.
Knapp Knapp,
that a
court held
ternity
test
Ohio St.3d
evidence,
newly
(1986),
but no
discovered
493 N.E.2d
this court
declared,
from the decree was available because
year
motion was made more than one
after the
[£]inalityrequires
some
that there be
end to
judgment.
lawsuit,
Relief was not available under
every
producing certainty
thus
(6)
counterparts to
be
Ohio
public
sys-
in the
the law
confidence
they
apply
newly
cause
do not
discovered
ability
disputes.
tem's
resolve
Perfection
poli
claims. The
court stated the
evidence
Ohio
litigated
requires
every
case be
until a
cy
its
that are also
rationale for
decision in terms
perfect result is
For obvious rea-
achieved.
applicable here:
sons,
typically placed finality
courts have
hierarchy
perfection
above
of values.
We are not unaware that our decision in
Finality
particularly compelling
in a case
declares as static
of facts that
effect
a state
involving
parentage,
None-
determinations of
visita-
reliable scientific evidence contradicts.
theless,
sup-
compelling
are
tion and
of a minor child.
there
reasons
Strack,
port such a decision. A claim under Civ. R.