*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, 767 P.2d at 186. See impact change on this child as a result a aside, Houger the Starkweather in the economic status and substance-abus- distinguish Garding court’s efforts ing parent habits of the non-custodial is do not answer our most basic dif- Gratrix purely speculative. generalized improve- A ference. Courts will now need to deter- Crystal ment in the status of does improvement a mine whether unilateral is require modification of this established vintage “long of “recent” or is term.” arrangement.1 Crystal custodial While encourage potentially Such distinctions overcoming per- to be commended for her damaging, annual rituals of attacks obstacles, showing no has been made sonal relationships. stable custodial Where one impact that this alone has had a material so, adequate parent perfectly has remained showing No sufficient on John. many years, previously even for inade- made, changed having circumstances been now, more, may quate parent without seek inquiry no “best interests” should be un- Indeed, relitigate custody. under the dertaken. rationale, (and longer presum- court’s the Moreover, that “mere this court has held stable) ably relationship, more the custodial position in improvement the of one of the re-open greater justification old change parties justify is not sufficient to wounds, assuming previously inade- custody.” Garding Garding, 767 quate parent slipped has not into inad- back (Alaska 1989) (quoting P.2d Gra equacy. Gratrix, (Alaska trix v. 1982)). improve This is true even if the extended duration and the im

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. 704 P.2d at 5.See Daou v. 139 Ariz. is a factor favors However, (1984) (whether caused ex- 941 headaches we there is no indication in 773. note memory given held defen- cusable loss doubtful Appellant’s or in Brief that Tesoro the record competence during period in dant’s evident timely notify Rapoport’s of but did not knew question). entry de- of Tesoro’s intent to seek counsel See, e.g., Kenai Peninsula Bor- fault part: English Bay Village 1. Civil Rule states in relevant ough Corp., 781 Alaska P.2d 1989) (Alaska cited. and cases n. 2 (b) Ne- Mistakes—Inadvertence—Excusable glect Newly Discovered Evidence—Fraud— — Gregor Hodges, upon Compare at 1010 terms as are Etc. motion such 4. 60-year legal (reasonably prompt response by just, party old or his relieve a the court served; order, representative judgment, sedated when de- from a final widow bedridden and excused) City proceeding following lay reasons: with Markland v. or for inadvertence, (1) mistake, (no surprise or ex- explanation for P.2d at 659 8-month unexcused). neglect;.... delay delay; The dissent cusable seeks Moreover, Here, total these condi- will suffer meritorious defense.2 view, and, my as a judgments satisfied excess of million $1.7 tions are set judgment have been of the default.4 If his defense is default should result meritorious, devastating aside. truly will be neglect. for his As we stated sanction First, one of has satisfied Hertz, concerning judgment 60(b) by estab- grounds listed $436,319.43, intervening “[ujnless are there lishing a credible of excusable case controversy damages equities, concerning suffering Rapoport claims been to have on its magnitude of this should be resolved condition degenerating from a diabetic at possible.” 704 P.2d merits whenever by injuries depression aggravated mental The in an automobile accident. sustained Tiholiz, sup- testimony physician, of his Dr. Finally, there alternatives less were a substantial ports these claims and raises harsh than a default that would physi- Rapoport was doubt as to whether protected rights. sufficiently Tesoro’s have mentally cally capable of a reasonable pro- imposed could have Conditions been brought response to claims lien that Tesoro evident- tect best, sporadic occa- him. At *5 California, ly has obtained view, competence. my In one sions of required pay Tesoro’s costs could be competence intermittent whose defending obtaining connection with has and severe unpredictable genuine judgment. Judge recog- the default Saveli disability may to es- medical serve equitable these alternatives nized that tablish excusable fashioned event that this could be were to set aside the default Second, alleged a meritori- ment. to the of Tesoro’s ous defense substance that a written claim. asserts view, sum, my has suffi- In IEC, among and Te- agreement neglect and a ciently established excusable August was entered into on

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