Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@appellate.courts.state.ak.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

DAVID E. SANDBERG, 

Appellant, 

v. 

BRIANNA E. SANDBERG, 

(n/k/a Brianna E. Whitney) 

Appellee. 

_______________________________ ) 

Appeal from the Superior Court of the State of Alaska,
 

Fourth Judicial District, Fairbanks, Robert B. Downes, Judge.
 

Appearances: Thomas R. Wickwire, Fairbanks, for
 

Appellant. No appearance by Appellee.
 

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen,
 

and Bolger, Justices.
 

STOWERS, Justice.
 

I. INTRODUCTION 

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. 

) 

) Supreme Court No. S-14759 

Superior Court No. 4FA-08-02842 CI 

O P I N I O N 

No. 6889 – April 11, 2014 

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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. 

II. FACTS AND PROCEEDINGS 

A. Facts 

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. 

1. The Blackberry Drive house 

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. 

The parties continued to live in the house until they separated and Brianna 

left the home in late 2008. After their separation, David continued to make 

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improvements and repairs. He estimated that his additional, post-divorce work had 

increased the value of the home by approximately $19,000. David also continued to pay 

property taxes after the divorce. 

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. 

2. Brianna’s mental and physical health 

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.” 

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3. Brianna’s second trip to Seattle and return to Fairbanks 

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.1

 Brianna testified that she felt stuck in Seattle because 

she had no money and did not have a return ticket home. She remained in Seattle for 

four months; she testified that during this time “I got so sick, I was so scared, I didn’t 

know when I’d talk to my kids again and I just couldn’t function at all.” 

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 

In January 2009 Superior Court Judge Robert B. Downes ordered that 

David send two interim payments to Brianna in the amounts of $300 and $400. 

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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 for “a few months [of] 

rent with a roommate.” 

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. 

B. Proceedings 

1. The initial settlement agreement 

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 

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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 

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identified as “a residence solely titled in David’s name, valued at approximately 

$105,000.”2 David was also awarded a 1993 Ford truck, a 1999 Chrysler van,3 and a 

snowmobile. Brianna was awarded a 1998 Ford Expedition and David’s 401(k) 

retirement balance as of December 2008 (the approximate date of their separation), an 

amount of “approximately $32,936.18.”4

 The settlement agreement stated that the 401(k) 

payment “is specifically in exchange for [Brianna’s] knowing waiver of any and all 

claims against the residence/real property, any marital property described [in the 

agreement] and in full satisfaction of Brianna’s claim for spousal support.” The 

settlement provided that David would pay Brianna’s outstanding medical bills up to an 

amount of $6,470. The parties agreed to share legal custody of the three children, with 

David having physical custody during the school year. There was no provision for child 

support, but David was to receive the federal income tax deduction for all three children, 

as well as apply for and manage the children’s Alaska Permanent Fund Dividend checks. 

On August 26, 2009, the parties appeared before Magistrate 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).” 

2 David testified that the parties did not have the house appraised and that he 

arrived at the stated value of $105,000 by taking “a stab at it, really . . . based on some 

of the houses around us.” 

3 David later gave the Chrysler van to Brianna. 

4 Brianna testified that after taxes and after deducting her portion of a marital 

debt on the parties’ van and the $3,000 advance she had earlier received, she ultimately 

received a payment of “approximately $22,000.” In the court’s final order, it valued the 

payment at $32,936.00 or $24,523.69 net received. 

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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. 

2. Brianna’s Rule 60(b) motion 

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 

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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).”5 

First, with respect to Rule 60(b)(1), the superior court found that Brianna 

was mistaken in her belief that “the parties’ marital home was David’s separate 

property.” As a result of this mistake, “the settlement agreement did not equally divide 

the assets and debts of the marriage.” 

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 

The court found that Brianna was not entitled to relief under Rule 60(b)(3) 

because “[a]lthough David held an incredible amount of leverage during negotiation and 

took advantage of Brianna’s hardship, his actions alone did not constitute fraud or 

misrepresentation.” Brianna does not appeal this finding. 

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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. 

3. The trial and final order 

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.6 Further, the court 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 

6 The court found that the “value of this property is the subject of some 

speculation, but because the court concludes it should be sold, the value will be 

determined by the sale price. It appears it is worth about $120,000 to $150,000, as that 

was the value at the time of the trial (by virtue of the estimates of the parties and the 

other evidence).” 

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(assuming [Brianna] was able to repair the septic system).” The court also found that the 

“benefit [David] received from living in the house [following the separation] balances 

against the amounts he put into improving the house when he lived in the house.” 

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. 

III. STANDARD OF REVIEW 

We review a trial court’s grant of a Rule 60(b) motion for an abuse of 

discretion.7 We review the factual findings underlying the superior court’s decision for 

clear error.8 “The clearly erroneous standard, as we apply it, means something more than 

merely showing it is more probable than not that the trial judge was mistaken. We must 

be convinced, in a definite and firm way, that a mistake has been committed.”9 

7 Hopper v. Hopper, 171 P.3d 124, 128 (Alaska 2007) (citing McGee v. 

McGee, 974 P.2d 983, 987 (Alaska 1999)). The one exception is our review of a 

Rule 60(b)(4) motion, which we review de novo, Leisnoi, Inc. v. Merdes & Merdes, P.C., 

307 P.3d 879, 884 (Alaska 2013); however, there is no Rule 60(b)(4) issue before us on 

appeal. 

8 Wilson v. Wilson, 271 P.3d 1098, 1102 (Alaska 2012) (“Although a 

superior court’s decision is reviewed . . . for abuse of discretion, the court should make 

appropriate findings of fact supporting its decision, which are reviewed . . . for clear 

error.”). 

9 Alaska Foods, Inc. v. Am. Mfrs. Mut. Ins. Co., 482 P.2d 842, 848 (Alaska 

1971). 

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The superior court exercises broad discretion in property division cases.10 

When faced with a marriage of long duration where parties have commingled assets, 

property division in divorce proceedings consists of three steps: (1) characterizing the 

property available for distribution, (2) valuing the property, and (3) equitably allocating 

those assets between the parties.11 If the superior court makes legal determinations on 

the character of the property available for distribution, we review those legal 

determinations de novo, using our independent judgment.12 “Otherwise, we review a 

trial court’s determinations as to property available for distribution under the abuse of 

discretion standard.”13 The trial court’s valuation of the available property is a question 

of fact; we upset the court’s factual findings on appeal only if there is clear error.14 

Finally, “[w]e review a trial court’s equitable division of marital property under the 

abuse of discretion standard; we will not disturb it unless the result is clearly unjust.”15 

10 AS 25.24.160(a)(4); Moffitt v. Moffitt, 749 P.2d 343, 346 (Alaska 1988). 

11 Beals v. Beals, 303 P.3d 453, 459 (Alaska 2013). 

12 Id.; see also Lewis v. Lewis, 785 P.2d 550, 555 (Alaska 1990) (“Whether 

or not a particular piece of property is a marital or premarital asset is in large part a legal 

determination, involving the interpretation of AS [25.24.160(a)(4) ], and applying legal 

principles to the facts of the case.” (citations and internal quotation marks omitted)). 

13 Doyle v. Doyle, 815 P.2d 336, 368 (Alaska 1991) (citing Moffitt, 749 P.2d 

at 346). 

14 Beals, 303 P.3d at 459. 

15 Williams v. Williams, 252 P.3d 998, 1004 (Alaska 2011) (citing Walker v. 

Walker, 151 P.3d 444, 447 (Alaska 2007)). 

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IV.	 DISCUSSION 

A.	 The Superior Court’s Factual Findings Underlying The Grant Of 

Brianna’s Rule 60(b) Motion Were Clearly Erroneous. 

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).16 David argues that Brianna’s agreement to the property settlement was 

“knowing and voluntary” and thus she was not entitled to relief under any of the 

subsections of Rule 60(b). 

Rule 60(b) allows relief from a judgment, order, or proceeding for the 

following reasons: 

(1) mistake, inadvertence, surprise or excusable neglect; 

(2) newly discovered evidence which by due diligence could 

not have been discovered in time to move for a new trial 

under Rule 59(b); 

(3) fraud (whether heretofore denominated intrinsic or 

extrinsic), misrepresentation, or other misconduct of an 

adverse party; 

(4) the judgment is void; 

(5) the judgment has been satisfied, released, or discharged, 

or a prior judgment upon which it is based has been reversed 

or otherwise vacated, or it is no longer equitable that the 

judgment should have prospective application; or 

(6) any other reason justifying relief from the operation of the 

judgment. 

Case law dictates that “[c]lause (6) and the first five clauses of 

Rule 60(b) . . . are mutually exclusive” such that “[r]elief under clause (6) is not available 

unless the other clauses are inapplicable.” O’Link v. O’Link, 632 P.2d 225, 229 (Alaska 

1981). 

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“ ‘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.’ ”17 The rule, however, “does not allow trial courts to 

indulge a party’s discontent over the effects of its bargain. Accordingly, when a party 

makes a deliberate, strategic choice to settle[,] she cannot be relieved of such a choice 

merely because her assessment of the consequences was incorrect.”18 

The two subsections at issue in the instant case are (1) and (6).19 We have 

described the distinction between these two subsections as follows: 

Alaska case law does not clearly pinpoint which claims for 

relief are properly cognizable under Rule 60(b)(1). However, 

it appears that when a party is seeking relief due to the 

movant’s mistake or neglect the claim falls under 

Rule 60(b)(1); but when the parties are mutually mistaken the 

[ ] claim falls under Rule 60(b)(6). 20

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. 

17 Lowe v. Lowe, 817 P.2d 453, 459 (Alaska 1991) (quoting Livingston v. 

Livingston, 572 P.2d 79, 85 (Alaska 1977)). 

18 Dickerson v. Williams, 956 P.2d 458, 466 (Alaska 1998) (quoting 

Andrulonis v. United States, 26 F.3d 1224, 1235 (2d Cir.1994)) (internal quotation marks 

and alterations omitted). 

19 As noted above, Brianna initially also sought relief under subsection (3), 

claiming that David defrauded her, but the superior court found that David’s actions “did 

not constitute fraud or misrepresentation,” and Brianna does not appeal this finding. 

20 Williams v. Crawford, 982 P.2d 250, 255 (Alaska 1999) (emphasis in 

original) (citations omitted). 

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1. Rule 60(b)(1) 

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.” 21 “We have stressed, though, that to gain relief for excusable 

neglect a party must show not only ‘neglect,’ but a valid ‘excuse’ therefor.”22 We have 

noted that “deliberate . . . conduct is never mistake or excusable neglect.”23 Finally, we 

will not find a ‘mistake’ where no facts in the record support a party’s claim of lack of 

understanding.24 

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.25 The court found that Brianna’s mistake resulted in a 

21 Dickerson, 956 P.2d at 465. 

22 Id. 

23 Id. (quoting 12 JAMES T. MCLAUGHLIN ET AL., MOORE’S FEDERAL 

PRACTICE ¶ 60.41(1)(c)(i), at 60-88 (3d ed. 1997)). 

24 See, e.g., Dickerson v. Goodman, 161 P.3d 1205, 1207-08 (Alaska 2007). 

25 Brianna’s emphasis in her 60(b) motion on her “deteriorated health” may 

also suggest a claim under the rubric of “excusable neglect.” In order to suffice as 

excusable neglect, a medical disability must both cause the neglect and be “genuine and 

severe.” Rapoport v. Tesoro Alaska Petroleum Co., 790 P.2d 1374, 1377 (Alaska 1990). 

In Rapoport, we concluded that a claim of medical disability did not constitute excusable 

neglect where the party, during the period of claimed disability, corresponded with the 

opposing party, and participated in complex business dealings. Id. 

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 

(continued...) 

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settlement agreement that “did not equally divide the assets and debts of the marriage.” 

The court explained that Brianna believed the house belonged to David because 

“David . . . argued that the house was premarital property due to its location.” The court 

cited an affidavit David submitted in February 2010 in response to Brianna’s Rule 60(b) 

motion, in which David stated that he “owned the real property that was awarded to me 

prior to my marriage to [Brianna].” 

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 

25(...continued) 

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. 

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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. 

2. Rule 60(b)(6) 

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.”26 We have stated that “Rule 60(b) in 

general, and clause (6) in particular, should be liberally construed to enable courts to 

vacate judgments whenever such action is necessary to accomplish justice.”27 We have 

also warned, however, that “[t]he broad power granted by clause (6) is not for the 

purpose of relieving a party from free, calculated, and deliberate choices he has made. 

A party remains under a duty to take legal steps to protect his own interests.”28 In short, 

“in reaching the conclusion that a party is entitled to relief from judgment under 

26 O’Link v. O’Link, 632 P.2d 225, 229 (Alaska 1981) (citations omitted). 

27 Id. at 230 (citations omitted). 

28 Id. at 229-30 (quoting 11C.WRIGHT &A.MILLER, FEDERAL PRACTICE AND 

PROCEDURE § 2864, at 213-14 (1973)). 

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Rule 60(b)(6), we balance the interest in the finality of judgments against the interest in 

granting relief from judgment when justice so requires.”29 

In Foster v. Foster, we affirmed a grant of relief under Rule 60(b)(6) from 

a property division when: (1) the fundamental, underlying assumption of the parties’ 

dissolution agreement had been destroyed; (2) the parties’ property division was poorly 

thought out; (3) the property division was reached without the benefit of counsel; and (4) 

the asset in controversy was the parties’ principal asset.30 Following Foster, we have 

continued to apply these four factors, but we have “never held that all of these factors are 

essential for a finding of ‘extraordinary circumstances.’ Rule 60(b)(6) is, after all, a 

catch-all provision . . . .” 31 Accordingly, the four factors first enunciated in Foster “are 

not strictly necessary conditions but, rather, are particular instantiations of the equitable 

factors required to overcome the principle that, at some point, litigation must be brought 

to an end.”32 Trial courts should use these factors when appropriate, but should also bear 

in mind the flexible nature of Rule 60(b)(6), keeping in mind that “[t]he broad power 

granted by clause (6) is not for the purpose of relieving a party from free, calculated, and 

29 Clauson v. Clauson, 831 P.2d 1257, 1261 (Alaska 1992) (alterations 

omitted) (quoting Norman v. Nichiro Gyogyo Kaisha, Ltd., 761 P.2d 713, 717 (Alaska 

1988)). 

30 684 P.2d 869, 872 (Alaska 1984). 

31 Clauson, 831 P.2d at 1260-61. 

32 Id. (quoting Lowe v. Lowe, 817 P.2d 453, 459 (Alaska 1991)) (internal 

quotation marks and alterations omitted). 

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deliberate choices he has made”33 and that the clause is reserved for “extraordinary 

circumstances.”34 

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,”35 and “when a party makes a deliberate, strategic choice to settle[,] 

33 O’Link, 632 P.2d at 229-30 (quoting 11C.WRIGHT & A.MILLER, FEDERAL 

PRACTICE AND PROCEDURE § 2864, at 213-14 (1973)). 

34 Id. at 230. 

35 Dickerson v. Williams, 956 P.2d 458, 466 (Alaska 1998) (quoting 

Andrulonis v. United States, 26 F.3d 1224, 1235 (2d Cir. 1994)) (internal quotation 

marks and alterations omitted). 

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she cannot be relieved of such a choice merely because her assessment of the 

consequences was incorrect.”36 

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. 

B. Valuation Of The Marital Property 

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 increase in value attributable to improvements David made since the divorce, to 

comport with the rule that, post-divorce, the parties[’] financial fortunes, or misfortunes, 

are to be separate.” Second, David argues the court erred because it did not “include the 

appreciation in David’s Retirement fund, from which [Brianna’s] cash distribution came, 

when it redistributed the marital property.” David argues that the fund should be valued 

at $37,583.45, rather than $30,523.39, to reflect an appreciation of 23.13% between 2009 

and 2011. Because these arguments were briefed, we will address them to provide 

guidance to the trial court — although we recognize that they may be mooted by the trial 

court’s resolution of Brianna’s Rule 60(b) motion on remand. 

36 Id. 

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1. The valuation of the home 

In Ogard v. Ogard we established that “[o]rdinarily . . . the date of 

valuation . . . should be as close as practicable to the date of trial.”37 We also noted, 

however, that “there may be special situations in which the date of separation is more 

appropriate,” including, for example, when “the value of marital property increases due 

to the efforts of one of the spouses.”38 

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 

37 808 P.2d 815, 819 (Alaska 1991). 

38 Id. at 820 (citation omitted). 

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difficult to determine, the court will be required to provide an explanation of why this 

is so, such as incomplete records or conflicting testimony.39 

2.	 The valuation of the parties’ rent-free use of the marital 

premises 

“[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.”40 In other words, the court must also 

consider whether “any benefit . . . [David or Brianna] may have imparted to the marital 

estate was offset by the benefit [either] received from the estate by living rent-free.”41 

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 David primary physical custody of the 

children and sole use of the family home. As a result Brianna departed the home in late 

March 2009. In May 2011 the court granted Brianna’s motion for possession of the 

marital home. 

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 

39 See, e.g., Lang v. Lang, 741 P.2d 1193, 1195 (Alaska 1987) (stating that the 

trial court “has a duty by sufficiently detailed and explicit findings to give this court a 

clear understanding of the basis of the trial court’s decision, and to enable it to determine 

the ground on which the trial court reached its decision.” (quoting Merrill v. Merrill, 368 

P.2d 546, 548 (Alaska 1962)) (internal quotation marks omitted)). 

40 Rodriguez v. Rodriguez, 908 P.2d 1007, 1013 (Alaska 1995) (citing Wood 

v. Collins, 812 P.2d 951, 958 (Alaska 1991)). 

41	 Id. 

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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. 

3. The valuation of Brianna’s cash distribution 

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.42 Thus, of the two options available to the 

court with respect to the valuation of the cash payment, the court chose the option more 

favorable to David. Nevertheless, David argues that the court should have pursued a 

third option whereby the court would value the cash payment by calculating the amount 

by which the funds would have appreciated had they remained in David’s 401(k) 

account. This approach would involve considerable speculation and is not supported by 

our case law. The superior court properly avoided such speculation and did not err in 

its valuation of the 401(k) cash distribution to Brianna. 

42 Typically, a marital asset spent by one party after separation may be 

recaptured only when that party has wasted or otherwise misused the asset. See, e.g., 

Day v. Williams, 285 P.3d 256, 260 (Alaska 2012). Here there were no findings that 

Brianna wasted or misused the funds. Nevertheless, in the unusual circumstances 

presented here — in which an asset was spent after being transferred to one party in a 

binding settlement agreement that was later confirmed in a final divorce decree — it was 

not error for the court to recapture the funds and credit them against Brianna. 

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C. The Superior Court’s Award Of Attorney’s Fees Must Be 

Reconsidered on Remand. 

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. 

V. CONCLUSION 

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. 

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