*1
justification
Crystal
to
sole
require[s]
the
the children
mod-
less
award
welfare of
custody
parents
markedly
ification for
interests of the chil-
the best
where both
have
dren.”)
added).
(Emphasis
Any material
improved.
Garding,
ment is of
provement unilateral. Starkweather (Alaska 1981)
Curritt, 636 P.2d curiam) (modification custody de
(per mother, despite finding that
cree denied relinquished custody of children three
who years response petition earlier in to state RAPOPORT, Appellant, Robert custodianship, her was excellent terminate custodian). improvement, If such an stand ALASKA PETROLEUM alone, TESORO justify change cannot in custo CO., Appellee. justify reopening it dy, then neither can custody. Neither of the court’s issue No. S-3234. (recency grounds for distinction or sole im Supreme Court of Alaska. provement) distinguish Starkweather. Moreover, court, distinguishing parents Garding on the that both weight improvement, gives no
showed Edward,
improvements most no- shown significant
tably the efforts he has under- housing improve
taken to conditions local, reputable employment in Thus,
the field of education. this case is Garding; like “there is even
indeed much parent custodial nor non-custodial can afford to 1. It be that some circumstances change parent’s cir- parent the non-custodial Minnesota. The non-custodial move to impact cumstances will have a material on the gets joba transfer to Minnesota. Such a then example, best interests. For a child has child’s change materially im- in circumstances could only through an illness treatable constant care pact the child's best interests. Rochester, at a Minnesota. Neither the clinic
OPINION COMPTON, Justice. against was
Default entered Rapoport Robert when he failed to answer appear Alas- by or to defend a suit Tesoro (Tesoro). Rapoport here ka Petroleum Co. superior abused its contends that the denying Rapoport’s motion to discretion af- set aside that default We firm.
I. AND FACTS PROCEEDINGS 1987, 24, Tesoro filed suit On June Rapoport, against Frank Robert Energy Corpo Interior Guy Whitney, and (IEC) seeking payment of an IEC ration corporate alleged debt Tesoro per Rapoport, Whitney Chapados a.nd sonally served guaranteed. Rapoport was July by certified mail California on acknowledged receipt pro Rapo- signature. his cess documents port response action took no August 13, Tesoro service. On received, a for, on the 14th moved defendants, all including Rapoport. 198S, Rapoport moved to set July him un- judgment against
aside the default 60(b). allegation der Civil Rule appreciate too ill was that he was might regard he be sued possibility he Rapoport claimed that guaranty. “seriously injured in an automobile 1987,” as a result April and that accident complicated deal “has with been unable or matters.” serious business “ex- his illness contended that constituted meaning of Civ- neglect” within cusable Winfree, Offices Daniel Daniel E. Law 60(b)(1).1 il Rule Winfree, Fairbanks, appellant. for E. accident that “the car Rapoport testified Burglin, V. E. and David Ronald Noel ‘triggered’ bout of disorientation a severe Gantz, Thorsness, Powell Brun- Hughes, & he “did depression.” claimed din, appellee. for ability to corre- respond not have the effect the nature and spondence or realize taking C.J., which were MATTHEWS, of various actions Before MOORE, place.” BURKE, JJ. COMPTON neglect.” 60(b)(1) provides or excusable for relief from
1. Civil "mistake, inadvertence, surprise, judgments for Rapoport supported rights his claim with the on corporate various under IEC Tiholiz, bylaws. affidavit of Ivan M.D. Tiholiz tes- tified that suffers from con- July Between
trolled diabetes. Tiholiz also testified that part telephone in took sixteen calls with 17, 1987, April Rapoport on was in involved Heintz, Joseph public a certified accountant accident, an automobile and that “subse- concerning possible sale of his IEC accident, quent Rapoport to this automobile compli- stock. These discussions “involved developed progression of diabetes melli- “Rapoport cated financial matters” and testified, always participant.” depression.” tus and Tiholiz later an active He al- however, ways appeared compli- to understand “the Rapoport that while was in his concepts being cated and ideas discussed.” opinion competence,” “in and out of “ob- (sic),”2 “bumbling along,” tundant and Dr. Eric Frankenfeld testified that in land,” any impairment sometimes in “lala July Rapoport’s glucose 1987 Mr. blood lev- sporadic. was not constant but rather figure els measured at a “decent for a Frankenfeld, specialist in diabetic.” dia- However, the record also reveals the fol- betes, readings testified that even of 250 or Duntze, lowing. duty Diane the nurse on impairment 300 do not indicate mental ab- accident, Rapoport’s at the time of testified complications sent which did not at the in that the automobile accident resulted appear Rapoport. complica- in time Such ribs, nothing and more than some bruised tions, added, he would have been inconsist- Rapoport signs of of showed no loss any activity ent with other than a continu- consciousness, headache, or visual distur- hospital stay, opposed occa- ous as to the Rapoport bances. was “alert orient- outpatient Rapoport engaged sional visits ed.” July September in between (cid:127) 27, 1987, Rapoport actively par- plen- Frankenfeld concluded “... there are ticipated meetings concerning pos- in two ty Rapo- of diabetics the status of Mr. According Greg sible sale of IEC. to Cha- port perfectly capable perform- who are of ” pados, meetings, present who was at both society.... Rapoport appeared physically both appears in Other evidence the record mentally Rapoport fit. threatened to veto supports rejection the trial court’s of any “provide of him sale IEC which did not credibility Rapoport’s and therefore his profit” with a substantial and revealed that Tiholiz, Rapoport claimed illness. even party “he had another interested invest- during period alleged incapacity, of ing in [IEC].” potential “periodically” discussed invest- 10, 1987, past Rapoport ments. brokered On June wrote a le- forming opinion a loan for Tiholiz. In his gally sophisticated letter to other share- Rapoport’s capacity July lack of 1987 IEC, including Whitney holders of and Cha- ongoing Tiholiz was unaware of the IEC letter, pados. Rapoport attempts In the to negotiations. July related Between 1987 pressure Whitney Chapados buy- into and March Tiholiz had no face to face out, ing him threatens to force IEC into Rapoport, refilling visits at all with instead not, Chapter bankruptcy they 11 should prescriptions phone. over the (in detail) concerning and instructs them legal several actions he felt needed to be 11, 1987, July 10 or Between June 19 and taken in connection with IEC business. Rapoport and his wife took motor vaca- “long, references arduous and tion, criss-crossing four times and Colorado protracted negotiations” arrange returning days but a few before service of repre- sale of his IEC stock with an IEC process. Finally, Rapoport’s wife is em- similarly sentative. later sent so- ployed Rapo- in a medical office and when phisticated telegrams seriously port undisputedly insist- became ill in virtually asleep.” 2. Dr. Eric Frankenfeld defined "obtunded" as meaning staring blankly patient “the or is recognized City June 1988 she that his condition (Alaska 1973). urged Rapoport get To set a default was severe aside “neglect” provision attention. ment medical under the Civil 60(b)(1), Rapoport Rule must therefore superior Rapoport’s denied The court prove neglect.” “excusable Genuine and 60(b)(1)motion, reasoning: disability severe generally medical suffices [Fjrankly, the court does believe as Gregor, excusable See during that Mr. was disabled P.2d at 1010. period The time.... the level of Mr. believe someone of Thus, in order the trial reverse activities, assuming he even court, *4 left and we must be with a “definite was out of it when the mail handed firm conviction of error” from the trial box, him, if it in a at was thrown some of Rapoport’s court’s that claims year that box point before one would credibility, despite consid disability lacked at, should have been have been looked in erable evidence of facts activities at.... looked consistent a claim.4 Given with credible Rapoport’s knowing receipt of certified II. DISCUSSION signature, his mail as demonstrated (and knowing inquiries acrimonious corre of a to vacate default Denial motion after spondence) regarding IEC before 60(b)(1) judgment under Rule will Civil service,5 complex his numerous business if the trial court abuses its be “overturned dealings during period alleged the inca of discretion, Inc., Village, Gravel v. Alaskan participation therein and pacity and lucid 273, 1967), (Alaska i.e., 277 if we 428 P.2d testimony Rapoport’s his own doctor's the firm are ‘left with definite and convic- competence, are not left intermittent we that tion on the whole record the trial of er with a “definite and firm conviction judge has made v. a mistake.’ Corso ror.” Education, 246, 563 P.2d 248 Comm’r of (Alaska 1977) (footnote omitted).” Gregor AFFIRMED. (Alaska 1008, 1010 Hodges,
v.
612 P.2d
curiam).
1980) (per
MATTHEWS,
Justice, dissenting.
Chief
Rule
prevail
A
on a Civil
party
“A
moves to vacate a
movant should
who
60(b) 60(b)1
to set aside a default
judgment under Civil Rule
motion
default
establishing
ment when he satisfies one of the
the burden of
his entitle
60(b)
sets out a
rule.”
listed in
Rule
ment to relief under that
Markland
Civil
argument
of
trial court’s determination
the
for
sake of
re-evaluate the
3. We assume
the
despite
credibility
the con-
claim
Rapoport met his additional burden
demon-
supporting its decision. One
siderable evidence
defense to
claim.
strate a meritorious
Tesoro's
significant
Gregor
Berzanske,
(Alaska
and the
difference between
772
704 P.2d
See Hertz
sug-
present
is the considerable evidence
1985).
case
We further assume
Tesoro would
disability.
gesting
any
exaggeration of
judgment
prejudice
default
minimal
if the
suffer
vacated,
judgment
and that the size
were
Hertz,
Harris,
678 P.2d
trial.
soro defense to relief under meritorious warrant provides argues agreement He 60(b), sup- equitable factors defenses, and sat- including accord several Therefore, I would set port such a result. isfaction, release, and fraud. illegality judgment, on conditions aside default Further, equitable several factors favor supervised by judge. trial set and to be setting Tesoro will aside in this
litigate the same issues involved Hayes, in a co-guarantor,
case
companion case.3 the same issues Since case, setting fully litigated be in that
will probably present judgment will
aside significantly litigation Tesoro’s add to
burden, it nor will increase the work
superior court. 771-772; Berzanske, disability, conclude that at to the this court would 704 P.2d 2. See Hertz Thomas, Service, Cleary Diving Rapo- 688 P.2d Inc. v. as to sufficient evidence has been raised (Alaska 1984); Gregor Hodges, disability. port’s exercise its The court would" P.2d at 1009-1010. are sufficient facts discretion in there by Rapoport presented there to conclude judgment case in entered in this 3. A default court concludes be a meritorious defense. The $375,530.71 by Judge Saveli. the amount prejudice plaintiff, since these there is no holding, Judge Judge Hodges, relying on Saveli's litigation plaintiff and issues are in full between Rapoport's motion to set aside also denied Therefore, Hayes. except for the col- defendant companion case on the in the issue, estoppel would set court] lateral [this estoppel. Alas- See Tesoro of collateral judgment.” the default aside Energy Corp., Case ka Co. Interior Petroleum That totalled No. 4FA-87-1177 Civil. however, $1,332,268.62. noted, Judge Hodges supra. 4.See footnote estoppel “[e]xcept issue as for the collateral