*1 Ruining Against Harrisburg Coalition g., LIVINGSTON, Appellant, F.R.D. Volpe, 65 Environment v. Candace J. rationale be- (M.D.Pa.1974). 610-11 good faith and rea- this limitation of
hind LIVINGSTON, Appellee. Donald R. while at the time necessity is that sonable No. 2825. may unnecessary impossible trial it at the pretrial of a deposition, make use Supreme Court of Alaska. he to counsel may appear stage 2, 1977. Dec. to trial without de- safely proceed cannot Therefore, key witnesses. posing parties taking a penalized the inter- protect measure
precautionary hand, client. On other
ests for their own required pay are
parties “reasonable necessi- expenses, the
discovery deterrent will act some
ty” limitation We unnecessary depositions. taking 79(b) as em-
interpret our own Civil “good faith”
bodying these requirements necessity.” “reasonable bar, the parties at to the case
Turning wit- key taken were depositions were
whose trial. actually who testified
nesses well have be- for Wimmer
Counsel would be utilized depositions that the
lieved impeachment or for
for cross-examination showing they no and there is
purposes, faith. taken in bad
were
It was within sound discretion whether the the trial court to determine Elliott, Beaulieu v.
costs were allowable. Underwriters’ Re accord Moss v.
supra; we con supra. circumstances
port, properly exercised
clude that trial allowing costs for these
its discretion
depositions.
AFFIRMED. *2 Middle- Wagstaff, Wagstaff H.
Robert ton, appellant. Anchorage, Ross, Anchorage, Wayne Anthony pellee. BOOCHEVER, J.,C. and RABI-
Before CONNOR, JJ. NOWITZ OPINION (cid:127)RABINOWITZ, Justice. presented by controlling question
The propriety appeal concerns en- vacating previously superior court’s Factually, default decree. tered divorce therefore warrants de- case is unusual and point. reference at this tailed Living- May appellant Candace complaint filed divorce ston The of the State Alaska. Superior Court child, asserted, part, that one Livingston, Ann born Carrie It marriage. alleged was further that Can- proper person was a to have dace fit and appel- and that Donald R. be awarded lee rights reasonable of visitation. Counsel for also Candace filed with permit by publication motion to service inquiry. an affidavit of Subse- quently, applica- counsel filed an Candace’s entry tion for of default which was accom- panied his affidavit Livingston’s application. Appellee Donald default was thereafter entered the clerk The matter then came on for Superior default before Judge H. Court William Sanders. fact,
In his findings Judge Sanders found that “is a fit and care, person to and control the minor parties child of the defendant should have rights reasonable visitation with said child.” decree, which was entered on March 8, 1974, provided, that Candace “is part, hereby granted sole and control of the minor parties . rights reasonable of visitation to the defendant.” lacked to make three months after of Alaska Approximately mi- Judge parties’ determination as to the entry of sponte, sua Butcher, filed a if the child at the acting perti- nor child was not Harold J. resident Judgment.” nent times a of Alas- Open “Motion to Vacate State with this Butch- ka.1 Concurrently motion re- er entered orders show cause *3 Hearings Judge were held on Butcher’s appear and her to quired Candace counsel and Open Judgment” “Motion to Vacate why at a time and cause stated show Occhipin- J. Superior Judge before Court C. and the opened case “should not subject hearings, Judge ti. At the conclusion therein be considered
judgment entered that Occhipinti ruled there had been to vacating.” In his motion subject for upon perpetrated fraud the court in that vacate, open Judge Butcher asserted and misled as to had been Candace, as well as Can- that counsel jurisdiction child whether it had to award had fraud individually, committed dace that Can- custody appellant and counsel for proceeding in the upon the court divorce Livingston had filed a false affidavit.2 dace had instituted in they which stated, decision, Judge in Occhipinti In his grounded allega- Butcher his Judge part: aspects two essentially of fraud tions appearances the Com- From outward First, the affida- he asserted that the case. simple basic facts found in plaint recited filed inquiry which had been vit of ordinary divorce actions. most mo- counsel in of the by support Candace’s was permit by publication to service tion . Butch- Judge . . Subsequently, Second, alleged Judge Butcher fraudulent. er, that . received information . was parties the minor of the that since child existed in irregularities may some have residing Oregon at times all State in a divorce, resulted obtaining the filing from shortly with her father after open to Butcher by Judge motion made divorce entry until of the Judgment . and vacate the and her coun- the failure Candace decision, portion of his Findings In the the child’s constituted sel to reveal found, part: in Judge Occhipinti Butcher’s Judge the court. In upon fraud Mr. filed view, 1. That affidavit this non-disclosure constituted 19, 1973, alleging dili- Wagstaff because on June upon the court Judge regard, grant fix of the Motion to a divorce and Butcher’s to In this Judgment attorney Wagstaff knowing Open as law- and Vacate reads: know, ought yer the court had no alleged It is further that thereafter child, prepared jurisdiction over the for the 73-1637, Livingston Wagstaff caused case signature judge’s findings conclusions to and be- to be for trial vs. calendared plaintiff effect entitled to was date, Judge and without Sanders on that fore control of the minor and place giving notice as to the and of trial the defendant should be re- child attorney, attor- to defendant defendant’s pay plaintiff quired $75.00 sum of client, ney Wagstaff together with his Can- per support month for of the minor child Livingston, appeared J. and dace presented prepared judgment and and plaintiff the case the the oath and call of took Sanders, Judge alert questions put accordance therewith. responding to to her attor- personal judgment of law ney Wagstaff, to the rule that a testified in of her com- leading Judge not be construc- plaint could maintained based on for divorce Sanders into service, marriage, the child struck from the belief that of the Car- tive Livingston, jurisdic- support, signed but Ann was within the and entered rie order court, by failing placed custody the Alaska to dis- tion of of divorce and do, close, plaintiffs attorney duty marriage plaintiff. child of the during mentioned that the child all the times Judge Occhipinti motion for also denied a petition this and and afterwards before discovery by appellant her which was and filed physical custody defendant was They inquire desired the rela- counsel. into Portland, Oregon, and was not within correspondence tionship between and jurisdiction Alaska court and thereaft- appellee Livingston. and Butcher proof Judge Sanders er when found sufficient comply parties’ Alaska minor child. not inquiry did gent Further, appeal argues the state- 4(e). improper show was Wagstaff court’s order to cause Mr. ment that both and her counsel denied both all avenues known client exhausted law; service due client was untrue. him and to his Livingston; appellee Donald effected court had time of the That at bar; the case award child 8, 1974, on March Judge Sanders before superi- perpetrated upon not fraud was Wagstaff Mr. did Plaintiff and court; of certain dis- denial the location of the the Court of advise by appellant motions made covery mi- parties; that said an of discretion counsel constituted abuse time with her father nor child at that superior court. part on the there Oregon prior and had been *4 432, Grow, v. 502 P.2d Mallonee filing, Wagstaff both Mr. (Alaska 1972), appropri established that the knew this. and the Plaintiff
ate standard of review for trial
reso
grounded
on
lutions of claims
relief
proceeded to fi-
Wagstaff
7. That Mr.
upon the court is abuse of discretion.
fraud
in order to
nalizing
matter
obtain
we said:
Specifically, Mallonee
custody of
minor without
advis-
fully
court’s determination that
another
ing the Court
that
action
Mallonee’s actions constituted fraud on
by the
commenced
Defendant
[been]
the court cannot be
unless
disturbed
information
com-
Oregon. That this
was
are convinced that
its
it has abused
dis-
Wagstaff by
municated to Mr.
Defend-
(footnote omitted)
cretion .
.
. .4
27,
August
on
1973.
attorney
ant’s
Bussell,
496,
In
(Alas-
Allen v.
558 P.2d
law,
its conclusions of
1976),
ka
we noted
cases in
that the
determined:
the court
has been found usual-
That
Decree
1.
obtained
“
ly involve
‘the
egregious
most
conduct
was obtained
virtue of fraud
Plaintiff
judicial
involving
corruption
proc-
a
on the Court.
”5
Wright
ess itself.’
and
Professors
Miller
observe:
Wagstaff
That
was negligent
3.
Mr.
courts have
to invoke
refused
[T]he
and use of
preparation
in the
the affida-
wrong,
concept
cases which
if
candidly
and did
admit
to the
vit
not
was,
wrong
only
there
between
was
all
on
Court
the facts
parties in the case and involved no direct
8, 1974.3
March
judicial
integrity
assault on the
Livingston
ap-
process.
by party
now
or his
Appellant Candace
Nondisclosure
enough.6 (foot-
seeking
original
reinstatement
has not been
peals,
omitted; emphasis added)
she
granted
*5
Noles,
he,
would neither
the
reveal
prej-
he was
Alaska,
discern how
we fail to
Livingston
of
nor ac-
whereabouts
Donald
affida-
deficiency in counsel’s
by any
udiced
Livingston. Ap-
of
for
cept service
any
Absent
real
diligent
inquiry.
of
vit
on what we choose to charac-
pellee’s attack
affected,
allegedly
party
the
prejudice to
in
terize as minor failures
the nature of
has
slight
case
conclude that
best
we
non-compliance of the affidavit
technical
of
ap-
for
that either
presented
holding
been
diligent
provisions
the
of
inquiry with
Civil
egregious
in
engaged
or her counsel
pellant
4(e)(1)
change
Rule
does not
the facts that
the
corruption
involved
of
conduct which
received
notice
Livingston
actual
of
itself.
judicial process
inquiry
Corp.,
Mfg.
of an answer. The affidavit
shall
&
459 F.2d
Research
Consolidated
(2d
1972).
by
inquirer.
fully speci-
Kinnear-Weed
See also
made
It shall
Cir.
be
Co.,
Refining
Corp.
441 F.2d
fy
inquiry
persons
v.
Humble Oil
made and what
(5th Cir.),
by
in what manner so
the facts stated
(1971);
United States
30 L.Ed.2d
S.Ct.
appear
inquiry
diligent
it
therein
Auto., 167 F.2d
Sedan
v. One 1940 Oldsmobile
purpose
effecting
has been made for the
1948).
notice.
actual
primarily
Appellee
provides:
claims
Candace and her
4(e)(1)
inquire diligently
counsel did
as to his
Inquiry
Diligent Inquiry.
as to
absent
Oregon,
by
whereabouts
the State
and thus
party’s
be made
shall
whereabouts
made,
inquiry
by
diligent
by
party
affidavit
filed
counsel
to have service
or
who seeks
actually
with the con-
entrusted
false. The
text
counsel’s affidavit of
action,
agent
by
inquiry
duct
attorney.
reads in full:
any person
It shall
made
Wagstaff, attorney
now Robert H.
Comes
pos-
inquirer
has
to believe
who
reason
herein,
plaintiff
and states that he has ex-
knowledge
or information
to the
sesses
all avenues known to
hausted
both him and
party’s
address or the
residence or
absent
his client Candace J.
as to the
inquiry
inquired
shall be un-
matter
of. The
present
whereabouts
defendant Don-
letter,
by
person or
and the in-
dertaken in
quirer
Livingston.
correspondence
R.
ald
All recent
has been or
state that an action
shall
Oregon
at his
to him
last known address in
against
party
commenced
is about to be
inquired
remained
Accordingly
has
plaintiff requests
unanswered.
for,
inquiry
object
permission
of this court
give
notice of the action
such
by publication
absent
serve
defendant
ac-
party may appear and defend
such
order that
cording
rule.
letter,
by
post-
inquiry is
made
it. When
age
return
shall be enclosed sufficient
divorce,
action;
Don-
that she had filed
that he re- Donald
pending divorce
testi-
with the child. Donald
ald absconded
appear
time to
ample
notice
ceived such
daughter
fied
he “took
where
any
[he]
of the relief
against
aspect
[his]
and defend
off,”
learning
after
figured she’d be better
demanded;
deliberately
refused
had filed for divorce.9
that Candace
defend, or.
himself to the
submit
appear,
Alaska;
the courts of
jurisdiction of
findings
court’s
address
superior
Thé
Livingston’s
made
that Donald
counsel was
only tangentially
jurisdictional
issue
proceed by
intended to
aware that Candace
whether a fraud
determining
context of
Against
background
default.8
factual
court
had
committed
been
deficiencies
concluded
We conclude
pellant
her counsel.10
relating
by publication in the case
to service
domicile-jurisdic-
that consideration of
at bar do not constitute a fraud
inappropriate
tion
would
issue
superior court.
findings concerning
court’s
inadequate.
Further-
domicile are
child’s
next to
facet of the
We turn
another
more,
regard-
disposition of other issues
our
conclusion that
fraud had
superior court’s
ing
decision to vacate
on the court —whether the
been committed
decree, as
relates to
the default divorce
to determine
to de-
custody,
unnecessary
child
makes it
minor
when the child
domicile-jurisdiction ar-
appellant’s
termine
in Alaska
present
was not
at the
physically
gument.
was entered.
default decree
Can
Nevertheless,
taken
relat-
dace maintains that she had
the mi
we must consider the
to visit the child’s
ed
a fraud
been
grand
nor child Carrie
whether
she, Candace,
Oregon
perpetrated upon
mother
while
job
looked for a
Alaska
filed for
failure of either
her counsel
further stated
it was
physical
parties’
divorce. Candace
disclose
stan-
again,
to return for
child after
child. Here
under the
intent
Bussell,
finding
According
Alaska.
employment
adopted
dards
Allen
Grow,
1976),
Candace,
she had called and told
and Mallonee v.
(Alaska
after
*6
personal goods
shipped
Wright
to
were
and Miller note:
household
Oregon;
Professors
abandoning
his
that rather than
Can-
away
from for-
Further evidence
the shift
Carrie,
her hus-
dace and
abandoned
Candace
process
notice-giving
is the
malism in the
Alaska;
daughter
returning
and her
to
band
generally take a
fact that the federal courts
approximate
filing
from the
of the
that
permissive
the mechanism
attitude toward
then,
times since
and at all
employed
when de-
for service of
notice,
daughter,
(footnote
minor
actually
of their
has
receives
fendant
omitted)
superior
court
not have
therefore
did
that
custody.
Miller,
jurisdiction
Wright A.
Practice and
to award
4 C.
&
Federal
1074,
(1969).
disputed
Procedure:
at 295
that
§Civil
It is not
Anderson,
See,
g.,
451
193
e. McConnell
F.2d
the fact that the
Sanders was unaware of
1046,
(8th
1971),
U.S.
Oregon
pendency
cert.
405
92
during
Cir.
the action’s
was in
(1972);
L.Ed.2d
Nowell v.
being
S.Ct.
of her
there.
and of the circumstances
Nowell,
1967),
de
jurisdiction motion and such terms as upon On are a rele- divorce. It was also just, the court a relieve regard to the factor in vant legal representative a final judg- from which is disposition make a duty to ment, order, or for the proceeding follow- of the child. If best interests ing reasons: on the had been clearer factual situation that the of the child’s domicile—such issue lack of to enter
superior court’s
(6)
other
justifying
reason
relief
such
light
a
decree was clear in
operation
from the
judgment.
holding
stronger case
domicile —a
60(b),
entirety, attempts
pre-
Rule
in its
through
the court
non-disclosure
upon
fraud
serve
delicate balance between
con-
However, as
have been made out.
would
flicting principles
litigation
brought
Moore states:
Professor
justice
light
end and that
to an
be done
jurisdiction may at
obtaining
Fraud
the facts.12
the par-
of all
Decisions under
But
upon
the court.
times be
fraud
procedure
allel federal rule of civil
reflect
can
afforded
usually
relief
appropriate
the view that Rule
“liberally
60 is to be
fraud;
concepts of
and bet-
under other
construed,
particularly
regard
de-
result
administration will
judicial
ter
judgments,
judgments
fault
order
species
fraud is not
cases if
most
reflect
the true merits of a case.”13
will
category
the rather nebulous
put within
The rationale for this liberal construction is
the court. While fraud
of fraud
greater
reopen-
there exists
reason for
put
jurisdiction may improperly
judgment
merits of
ing a
when the
machinery
usually
judicial
operation,
never
cause have
been considered than
judicial
corrupt
power.11
does not
when the
has been rendered after
foregoing,
we believe
light of
trial on the merits.14 It has been
a full
held
decided that
incorrectly
(6)
60(b) gives
that clause
courts
the court
had been committed
to vacate
whenever
ample power
judgments
or her
failure of either
by the
appropriate
accomplish jus-
that action
respect
information with
counsel to disclose
Wright
In the
tice.15
words of Professors
*7
child’s
to
minor
whereabouts.
the
and Miller:
(6)
the record
relief
under clause
general,
given
our conclusion that
In
is
Despite
superior
the
cases in
to furnish
which the
fails
of
by
the
the
conduct
the
improper
that a fraud
obtained
court’s determination
504,
60.33,
Velvac, Inc.,
F.R.D.
at 514^-
14. In Edwards v.
19
¶
11. 7 Moore’s Federal Practice
(E.D.Wis.1956),
(2d
1975).
507
the court stated:
ed.
15
60(b)
counterparts
and
state
Rule
its
States,
Mortgage
423
12.
Co. v. United
Bankers
statutes,
proven
have
themselves to
valua-
927,
73,
Cir.),
(5th
77
399 U.S.
F.2d
ble,
discretionary pow-
equitable and humane
2242,
(1970).
sions of the default bar, in the case at
tered Affirmed.21 court is
BURKE, J., participating. not Justice,
BOOCHEVER, concurring. Chief issue of whether not rule on the
I would or her counsel to failure of to the mi- respect
disclose information constituted fraud child’s whereabouts
nor certain that under the court. I believe
circumstances, inform the court a failure to or counsel known to
of facts on the court. Because
constitute issue under Civil Rule disposition of the
our on whether
60(b), unnecessary pass it is are such as would facts of this case As stated fraud on the court.
constitute majority quoted
Professor Moore and in this of situation:
opinion, type judicial administration
better if this species
will result in most cases within the rath-
[alleged] put fraud is category nebulous of fraud
er JACKSON, Appellant,
John Alaska, Appellee.
STATE
No. Court of Alaska.
Supreme
Dec. Miracle, Barbara J. Murtagh,
John M. Defenders, Asst. Public Rigos, Chris J. Defender, Shoretell, Anchor- Brian Public age, appellant. subject Following argument,
by appellant’s
Burke re-
oral
Justice
counsel that
participate
proceeding
disciplinary
cused himself and did not
in deliber-
filed with the Alaska
disciplinary proceeding
on this matter.
Bar Association. This
ations
allegations
is based on the same
which we
*9
opinion.
have alluded to earlier in the
divorce
in which
notes
Occhipinti’s
distinguish
from mere
3.
Decision
entered on
court’ and
‘fraud’
20,
February
a reminder
there is a
is as
distinction.
60(b),
The draftsmen
Fed-
.
[of
Grow,
432,
(Alaska
Mallonee v.
502 P.2d
eral Rules of Civil
must
con-
Procedure]
1972) (footnote omitted); see also Allen v. Bus
court,’
they
of ‘fraud
as
used
ceived
sell,
496,
1976);
(Alaska
499-500
very
phrase,
referring
as
unusual
Miller,
Wright & A.
Federal Practice and
C.
involving
injury
‘far
cases
more than an
to a
2872,
(1973).
at 261
Procedure: Civil §
litigant.’
(footnotes omitted)
single
Miller,
Wright & A.
Federal Practice
11C.
and
Miller,
Quoting
Wright
& A.
Federal
C.
2870,
(1973).
Procedure:
at 253
§
2870,
and
at 255
§
Practice
Procedure: Civil
6.Id.
(1973).
at 253-54.
Corp.,
Wilkin v. Sunbeam
Wright and
See
observe: