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 

TODD HEBER, 

Appellant, 

v. 

AMARA HEBER, 

Appellee. 

T

_______________________________ ) 

Appeal from the Superior Court of the State of Alaska, Third 

Judicial District, Anchorage, John Suddock and Andrew 

Guidi, Judges. 

Appearances: Richard W. Postma, Jr., Law Offices of 

Mitchell K. Wyatt, Anchorage, for Appellant. Jean W. Sato, 

Sato & Sato, LLC, Anchorage, for Appellee. 

Before: Winfree, Stowers, Maassen, and Bolger, Justices. 

[Fabe, Chief Justice, not participating.] 

BOLGER, Justice. 

I. INTRODUCTION 

In a custody modification proceeding, the superior court found that Todd 

Heber had a history of domestic violence and awarded Tamara Heber primary physical 

custody and sole legal custody of the parties’ son. Todd filed a motion arguing that this 

award was void because the assigned judge had received email communications from 

Supreme Court No. S-15355 

Superior Court No. 3AN-11-10347 CI 

O P I N I O N 

No. 6930 B August 1, 2014 

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Tamara and subsequently disqualified himself. On appeal, we conclude that there was 

no risk of injustice that required a second judge to set aside the custody award. 

Todd also argues that Tamara engaged in fraud because their original 

dissolution petition stated that there was no domestic violence between them. But the 

record of the motion proceedings shows that Todd had adequate notice of this issue and 

that, regardless of the accuracy of the dissolution petition, Tamara’s motion to modify 

custody did not clearly involve fraud. 

Todd also argues that the second judge should have been disqualified 

because he had once reported that Todd’s lawyer had a disagreement with another staff 

member. We conclude that these circumstances do not suggest any disqualifying bias. 

II. FACTS AND PROCEEDINGS 

Todd and Tamara Heber petitioned to dissolve their marriage on August 29, 

2011. In their petition, they agreed to joint physical and legal custody of their two minor 

children and chose not to have the court order a specific visitation schedule.1 They also 

indicated that no domestic violence occurred during their marriage. Superior Court 

Judge John Suddock entered a decree of dissolution incorporating the parties’ agreement 

on December 5, 2011. 

On July 27, 2012, Tamara sought an order requiring that their son remain 

at his current elementary school. She alleged that Todd had decided to enroll their son 

at a new school without her consent. 

At a hearing before the superior court on August 7, the parties testified to 

their disagreement about their son’s education. But the judge noted that their 

This appeal only concerns the the parties’ minor son. Custody of their other 

child is not at issue. 

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disagreement went deeper than education and suggested that Tamara might want to move 

to modify the custody arrangement concerning the parties’ son. She did so on 

August 9, requesting sole legal custody and primary physical custody with a weekly 

visitation schedule. 

A custody modification hearing was held on August 15 and August 21. 

During the hearing, Tamara testified that Todd had committed several acts of domestic 

violence while they were married. She also testified that Todd raped her “at least twice” 

while the couple was “working to repair [their] marriage.” During his own testimony, 

Todd did not deny that these incidents of abuse and assault occurred. Nor did Todd 

confront Tamara with the 2011 dissolution agreement, which indicated that no domestic 

violence had occurred during the marriage. 

On August 23, the judge entered a custody modification order. The court 

awarded Tamara sole legal custody of the parties’ son. Because the court found that 

Todd had committed “more than two acts of domestic violence against” Tamara, it gave 

Tamara sole physical custody as well.2

 But the court suggested that it would modify the 

physical custody order once Todd completed a “domestic violence intervention course.” 

Although the court ordered the parties to implement an “alternating week” visitation 

schedule, it permitted Todd supervised visitation only, until he completed the domestic 

violence course. 

Because Todd was permitted supervised visitation only, the parties and the 

court had to approve supervisors. The parties communicated with the court by email 

during this process. 

The court noted that AS 25.24.150(j) prohibited it from granting joint 

physical custody. 

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On August 24, the person acting as Todd’s visitation supervisor informed 

the court by email that Todd had violated several provisions of the August 23 custody 

modification order. After a hearing on August 27, the superior court found that Todd 

had violated its order and therefore altered the visitation schedule again, limiting Todd 

to visits on two out of every three weekends. The court did not put its oral order into 

writing at that time. 

On September 5, Todd, now represented by counsel, moved for 

reconsideration and a new custody modification hearing. He argued that he did not 

receive adequate notice that Tamara would raise allegations of domestic violence at the 

custody hearing. The superior court denied the motion, noting that “[i]t is not 

uncommon that domestic violence surfaces unexpectedly in a custody hearing.” 

On October 29, Todd moved for relief from the existing custody orders and 

the parties’ dissolution agreement under Alaska Civil Rule 60(b)(3). Although he 

maintained that Tamara’s allegations of domestic violence were false, he argued that, 

since the court had found Tamara’s testimony credible, “the logical conclusion is that 

Tamara misrepresented material facts in the [petition for dissolution].” Therefore, he 

argued, the dissolution and custody orders were “void for misrepresentation, and the 

parties should be allowed to fully litigate their property and custody issues.” 

On October 30, Todd moved to disqualify Judge Suddock. He argued that 

emails Tamara and his visitation supervisor had sent directly to the judge in August were 

impermissible ex parte communications that created an appearance of bias requiring 

disqualification. 

Judge Suddock granted the motion for disqualification on December 10. 

The judge explained that Todd’s visitation supervisor sent the judge an email on 

August 21 requesting that Todd pay her $250 per week for the supervision and reimburse 

her for gas. The court approved that arrangement, writing “So Ordered” on the 

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supervisor’s email. Although Judge Suddock believed that the approval “was not an 

order in substance,” it appeared to be one. Therefore, he disqualified himself “due to the 

superficial appearance that the court entered an order binding Mr. Heber to some course, 

without first hearing from him.” 

On December 19, Todd moved under Rule 60(b)(4) for relief from the 

custody modification orders issued on and after August 21. He argued that Judge 

Suddock had “acted in a manner inconsistent with due process of law” by “engag[ing] 

in ex parte communication with Tamara Heber and her witnesses and extra [–] judicial 

fact-finding” and by failing to “afford Todd the advance notice required by due process 

before converting an evidentiary hearing about which school to send the parties’ minor 

child . . . into a full blown custody modification hearing for domestic violence.” 

The case was reassigned to Superior Court Judge Andrew Guidi on 

March 11, 2013. The next day, Todd filed a motion to disqualify, arguing that Judge 

Guidi was biased against his attorney. Judge Guidi denied the disqualification motion 

two months later,and the denial was referred to Superior Court Judge Erin B. Marston 

for review. Judge Marston affirmed Judge Guidi’s decision. 

On October 14, 2013, Judge Guidi also issued an amendment to the 

August 23 custody modification order. The amended order incorporated changes Judge 

Suddock had made orally on August 27, 2012, but had never put in writing. 

Judge Guidi denied Todd’s October 29, 2012 Rule 60(b)(3) motion and 

December 19, 2012 Rule 60(b)(4) motion. Todd appeals, arguing that the superior court 

erred when it: (1) denied his motion for Rule 60(b)(4) relief from the August 23 custody 

modification order; (2) denied his motion for Rule 60(b)(3) relief from the custody 

modification order; (3) amended the custody modification order without notice or a 

hearing; and (4) denied his motion to disqualify Judge Guidi. 

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III. DISCUSSION 

A. Todd’s Rule 60(b)(4) Motion Was Properly Denied. 

Todd argues that the superior court should have granted his Rule 60(b)(4) 

motion for relief from the custody modification orders. He argues that relief from 

judgment is required because, once the assigned judge engaged in disqualifying conduct, 

he lost his “power and jurisdiction[] to take any further action in the case,” and any 

orders he issued after that point were void. 

Alaska Civil Rule 60(b)(4) provides that a court may relieve a party from 

a final judgment on the ground that “the judgment is void.” A judgment is void 

only where the court that issued it had no jurisdiction to 

subject the parties or the subject matter to its control, or 

where the defendant was not given proper notice of the action 

and opportunity to be heard, or where the judgment was not 

rendered by a duly constituted court with competency to 

render it, or where there was a failure to comply with such 

requirements as are necessary for the valid exercise of power 

[ ] by the court. 3

“In the interests of finality, the concept of void judgments is narrowly construed.”4 

Although the denial of most Rule 60(b) motions is reviewed for abuse of 

discretion, “no question of the [superior] court’s discretion is presented by a Rule 

60(b)(4) motion seeking relief from a void judgment because the validity of a judgment 

is strictly a question of law.”5 Questions of law are reviewed de novo. 6 

3 Leisnoi, Inc. v. Merdes & Merdes, P.C., 307 P.3d 879, 891 (Alaska 2013) 

(internal quotation marks omitted) (quoting Holt v. Powell, 420 P.2d 468, 471 (Alaska 

1966)). 

4 Id. 

5 Id. at 884 (quoting Aguchak v. Montgomery Ward Co., 520 P.2d 1352, 

(continued...) 

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Todd argues that the custody modification orders are void because they 

were issued after the assigned judge had engaged in the conduct that eventually led the 

judge to disqualify himself. Todd relies on Channel Flying, Inc. v. Bernhardt, where we 

vacated a judgment entered by a judge after he had been removed from the case by a 

peremptory disqualification.7

 That case involved the automatic effect of the peremptory 

disqualification statute, which states that the judge must be replaced after a challenge has 

been filed “at once, and without requiring proof[.]”8 We did not have the occasion to 

consider whether an appearance of impropriety alone would nullify the proceeding. In 

general, “a judgment is not void because of disqualification of a judge, but is only 

voidable on direct attack by appeal or by motion to set it aside.”9 Therefore, the 

disqualification of a judge is generally insufficient to support relief under Rule 

60(b)(4).10 

But even if Todd had asserted his challenge under the catchall provision of 

Rule 60(b)(6), this record would not require the superior court to vacate the judgment. 

As our court of appeals suggested in Vent v. State, to determine whether to vacate an 

5 (...continued) 

1354 (Alaska 1974)) (internal quotation marks and alteration omitted). 

6 Id. 

7 451 P.2d 570, 574-76 (Alaska 1969). 

8 Id. at 573 (quoting AS 22.20.022(a)). 

9 Smith v. Clark, 468 So. 2d 138, 141 (Ala. 1985). 

10 See Leisnoi, 307 P.3d at 890 (“The critical question is whether the superior 

court’s 1995 judgment issued in violation of 43 U.S.C. § 1621(a) was void — and thus 

amenable to a Rule 60(b)(4) challenge — or merely voidable, and not subject to such a 

challenge.”). 

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allegedly tainted judgment a court should look to the factors outlined by the U.S. 

Supreme Court in Liljeberg v. Health Services Acquisition Corp.: 

(1) 	 the risk of injustice to the parties in the particular case; 

(2)	 the risk that the denial of relief will produce injustice 

in other cases; and 

(3)	 the risk of undermining the public’s confidence in the 

[ ] judicial process. 11

In this case, there was no risk of injustice that would require relief from the custody 

modification orders. 

Judge Suddock granted Todd’s disqualification motion because of the 

“superficial appearance” that the court had issued an order without first allowing Todd 

an opportunity to respond. But the “order” in question concerned the amount that Todd 

would pay his visitation supervisor; it did not concern the merits of the custody decision 

at all. 

It is true that the visitation supervisor’s August 24, 2012 emails, in which 

she alleged that Todd had violated the August 23 custody modification order, related to 

the merits of the court’s decision to alter custody again four days later. But the judge 

quickly disclosed the contents of the emails and gave Todd ample opportunity to crossexamine the visitation supervisor and respond to her allegations at a hearing on 

August 27. Therefore, Todd was not prejudiced by the fact that the supervisor first 

reported his alleged violations in the emails. 

Todd also argues that the judge improperly cross-examined one of Todd’s 

witnesses at an August 24 hearing while Tamara was absent. But Todd is 

mischaracterizing the record. At the August 24 hearing, Todd presented an alternative 

Vent v. State, 288 P.3d 752, 757 (Alaska App. 2012) (citing Liljeberg v. 

Health Servs. Acquisition Corp., 486 U.S. 847, 862-64 (1988)). 

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supervisor for the court’s approval. The court asked the proposed supervisor limited 

questions concerning his ability to act as a supervisor before approving him. It is simply 

untrue that Judge Suddock “cross-examin[ed] Todd’s witness” or “prosecuted Tamara’s 

case.” Therefore, Todd was not prejudiced by the judge’s conduct at the August 24 

hearing. 

Todd also alleges that there was an exchange of emails between his 

visitation supervisor, Tamara, and the assigned judge. He notes that our court of appeals 

concluded in State v. Dussault that an ex parte exchange of emails created an appearance 

of bias.12 But, unlike in Dussault, there was no exchange of emails in this case; there is 

no indication in the record that the assigned judge responded to any of the emails sent 

to him by the parties. 

Finally, Todd alleges that the judge must have initiated ex parte contact 

with Tamara by supplying her with his court system email address sometime before the 

end of the August 21 hearing, when he issued the initial custody modification order. 

However, Todd points to no evidence that such an exchange actually occurred. And 

although the record suggests Tamara sent an email message directly to the judge, it is 

clear that Tamara was not given priority access to the judge or otherwise treated 

differently from Todd. The record indicates that Todd had the email address of the 

judge’s law clerk. Todd contacted the clerk to schedule a hearing concerning a substitute 

supervisor, and she promptly set a hearing in response to his email. 

Although we conclude that permitting the custody modification order to 

stand will not cause Todd injustice, we take this opportunity to note that judges should 

use email to communicate with parties and other persons about court business only on 

12 See 245 P.3d 436, 442-43 (Alaska App. 2011). 

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the occasions authorized by the Alaska Code of Judicial Conduct.13 There is a significant 

danger that ex parte email communication, even if well intentioned, will create an 

appearance of impropriety.14 

In summary, we conclude that it was proper to deny Todd’s motion for Rule 

60(b)(4) relief. 

B. Todd’s Rule 60(b)(3) Motion Was Properly Denied. 

Todd argues that it was error to deny his Rule 60(b)(3) motion for relief 

from the custody modification orders. He argues that Tamara engaged in 

misrepresentation when she testified at the custody hearing that, contrary to her statement 

in the parties’ 2011 dissolution agreement, Todd committed domestic violence against 

her during their marriage. He also argues that Tamara’s ex parte communications with 

Judge Suddock constituted misconduct warranting relief from judgment. He also argues 

that he was afforded inadequate notice that Tamara intended to allege domestic violence 

during the custody hearing. Finally, he argues that Judge Guidi’s summary denial of his 

Rule 60(b)(3) motion did not adequately state the reasons for the denial. 

Under Alaska Civil Rule 60(b)(3), a party may seek relief from judgment 

on the grounds that “an adverse party” committed “fraud (whether heretofore 

denominated intrinsic or extrinsic), misrepresentation, or other misconduct.” The fraud, 

misrepresentation, or misconduct must be proven by clear and convincing evidence.15 

And the moving party must prove that the fraud or misconduct “prevented [that party] 

13 See Alaska Code Jud. Conduct Canon 3(B)(7)(a)-(e) (outlining 

circumstances in which judges may engage in ex parte contacts). 

14 See Dussault, 245 P.3d at 443. 

15 Alaskan Adventure Tours, Inc. v. City & Borough of Yakutat, 307 P.3d 955, 

960 (Alaska 2013). 

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from fully and fairly presenting its case at trial.”16 “We review the denial of a Rule 

60(b)(3) motion for abuse of discretion.”17 

First, Todd argues that Tamara engaged in misrepresentation when she 

testified that Todd assaulted her during their marriage. He argues that Tamara’s 

testimony during the custody proceeding was perjury because she “swore under oath and 

penalty of perjury that no domestic violence occurred during the marriage” in the parties’ 

2011 dissolution agreement. 

But Tamara’s prior sworn statement is not clear and convincing evidence 

that her testimony during the custody hearing was false. Although the two statements 

contradict, it is just as likely that Tamara’s prior statement was false and her more recent 

testimony truthful.18 Therefore, the contradiction between the dissolution petition and 

Tamara’s testimony at trial does not establish that she committed fraud; it merely calls 

into question the credibility of her statements. 

Moreover, it is well established in Alaska that, “in custody matters 

involving domestic violence,” the superior court must “look back to events that occurred 

before the initial custody order if [they were] not adequately addressed at the initial 

custody determination or subsequent proceedings.” 19 This rule recognizes that the 

16 Id. 

17 Espeland v. OneWest Bank, FSB, 323 P.3d 2, 8 (Alaska 2014). 

18 And Todd did not deny during the hearing that the alleged domestic 

violence occurred. 

19 McAlpine v. Pacarro, 262 P.3d 622, 626 (Alaska 2011) (citing Williams v. 

Barbee, 243 P.3d 995, 1001, 1002-03 (Alaska 2010); Michele M. v. Richard R., 177 P.3d 

830, 831, 835-36 (Alaska 2008)). 

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presumption against a custody award to a parent with a history of domestic violence20 

was established in order “to decrease the likelihood that children would be placed in the 

custodial household where domestic violence exists.”21 That is, because “the ultimate 

focus in the custody modification context is the best interests of the children,”22 we must 

disregard the stipulation in the dissolution petition even if that result is unfair to one of 

the parents. 

Second, Todd argues that he was not given notice that Tamara would testify 

to domestic violence during the hearing, and therefore, he had inadequate time to prepare 

a defense against those allegations. He argues that Tamara was required under several 

Alaska statutes to plead domestic violence in the petition for dissolution and her motion 

to modify custody. But none of those statutes requires a party to plead domestic violence 

in a divorce or custody proceeding.23 Todd had ample opportunity to prepare to respond 

to Tamara’s allegations during the six days between the August 15 and August 21 

hearings. But Todd did not attempt to refute Tamara’s allegations, either when he cross20 See AS 25.24.150(g). 

21 Williams, 243 P.3d at 1001. 

22 Id. (internal quotation marks omitted) (quoting Lashbrook v. Lashbrook, 

957 P.2d 326, 328 (Alaska 1998)). 

23 See AS 25.24.210(e) (requiring that a petition for dissolution state whether 

either spouse has been charged with a crime involving domestic violence and whether 

either spouse was subject to a domestic violence protective order but not requiring the 

parties to state whether domestic violence otherwise occurred); AS 25.24.220(h) 

(requiring the superior court to view dissolution agreements with a “heightened level of 

scrutiny” if either spouse was charged with a crime involving domestic violence, if either 

spouse was subject to a domestic violence protective order, or if “there is evidence that 

a party committed a crime involving domestic violence”); AS 25.24.230(b) (list of 

findings the superior court must make before entering a decree of dissolution, none of 

which involves domestic violence). 

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examined her or when he presented his own testimony. The superior court even offered 

to give the parties more time to prepare, but Todd insisted that the court make a custody 

decision as soon as possible. 

Third, Todd argues that Tamara engaged in misconduct by sending ex parte 

emails to the assigned judge. But, as we have already explained above, those ex parte 

communications did not prevent Todd from “fully and fairly presenting [his] case at 

trial.”24 

Finally, Todd argues that this court should remand the order denying his 

Rule 60(b)(3) motion because the superior court did not adequately explain the basis for 

the denial. But the basis for the superior court’s decision to deny Todd’s motion is clear 

from the record as set forth above. We conclude that it was not an abuse of discretion 

to deny Todd’s Rule 60(b)(3) motion. 

C.	 The October 14, 2013 Order Amending The August 23, 2012 Custody 

Modification Order Was Not Issued Without Due Process. 

Todd argues that the superior court amended the August 23 custody 

modification order without providing Todd an opportunity to be heard. But the amended 

order merely put into writing changes that Judge Suddock imposed orally at the end of 

the August 27 hearing. 

Todd also argues that Judge Guidi wrongfully deleted the language in the 

August 23, 2012 custody modification order providing that, once Todd completes the 

domestic violence course, “the court will presumptively grant joint custody.” But Alaska 

Statute 25.24.150(a) provides that a court with jurisdiction may “make, modify, or 

vacate” a custody order if such action seems “necessary or proper.” As the superior 

court explained in an October 29, 2013 “Order on Request for Clarification,” because 

See Alaskan Adventure Tours, Inc. v. City & Borough of Yakutat, 307 P.3d 

955, 960 (Alaska 2013). 

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“the trial court cannot presumptively grant custody on the condition that a parent has 

completed a” domestic violence intervention course,25 the court therefore “interpret[ed] 

Judge Suddock’s Aug. 23, 2012 order as permitting a hearing to determine whether the 

presumption against Mr. Heber having custody has been overcome, which revolves 

around proof that he has been rehabilitated.” The superior court was well within its 

discretion when it modified the August 23 order to make it conform to Alaska law.26 

Finally, Todd argues that the superior court reimposed the “supervised 

visitation” requirement despite the fact that Todd had already completed the domestic 

violence intervention course. However, because the superior court released Todd from 

the supervision requirement on November 26, 2013, this claim is moot. 

We conclude that the superior court did not err when it issued the October 

14, 2013 order without further notice and hearing. 

D. Todd’s Motion To Disqualify Judge Guidi Was Properly Denied. 

Todd argues that Judge Guidi should have disqualified himself because the 

judge is biased against Todd’s attorney. Todd alleges that the judge previously retaliated 

against Todd’s attorney by “knowingly or recklessly spreading a provably false rumor 

about” the attorney after the attorney reported sexual and racial discrimination and 

harassment by Alaska Court System employees. 

25 See Stephanie F. v. George C., 270 P.3d 737, 754 (Alaska 2012) (“Even if 

a parent with a history of domestic violence overcomes the statutory presumption, he or 

she is not necessarily entitled to custody; a complete analysis of the best interest factors 

must be undertaken.”). 

26 See AS 25.24.150(a). 

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A judicial officer must disqualify himself if he “feels that, for any reason, 

a fair and impartial decision cannot be given.”27 For example, the Alaska Code of 

Judicial Conduct requires disqualification where “the judge has a personal bias or 

prejudice concerning . . . a party’s lawyer.”28 Disqualification is also required where, 

given the facts, a reasonable person might question a judge’s impartiality.29 

A judge’s decision that he is actually capable of conducting a fair trial is 

reviewed for abuse of discretion.30 The separate question whether a judge’s participation 

in a case would lead reasonable people to question his ability to be fair is a question of 

law reviewed de novo.31 

Todd alleges that his attorney was subject to sexual harassment and racial 

discrimination while his attorney was a state district court judge and that the Alaska 

Commission on Judicial Conduct retaliated against his attorney for reporting the 

harassment and discrimination. Todd alleges that Judge Guidi was involved because, 

when questioned about his experience working with the attorney when both were in 

private practice, Judge Guidi reported that the attorney had been involved in a staff 

dispute. 

27 AS 22.20.020(a)(9). 

28 Alaska Code Jud. Conduct Canon 3(E)(1)(a). 

29 See Peterson v. Swarthout, 214 P.3d 332, 339 (Alaska 2009) (“[T]he 

[disqualification] statute requires a judge to consider the appearance of partiality in 

addition to actual bias . . . .”). 

30 Hymes v. DeRamus, 222 P.3d 874, 880 (Alaska 2010); Phillips v. State, 271 

P.3d 457, 459 (Alaska App. 2012). 

31 Griswold v. Homer City Council, 310 P.3d 938, 941 (Alaska 2013); 

Phillips, 271 P.3d at 468. 

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But the record contains no evidence that Judge Guidi’s actions were 

motivated by bias or prejudice. The facts simply do not suggest real or apparent bias. 

Todd also argues that Judge Marston, who reviewed Judge Guidi’s decision 

not to disqualify himself, erred by failing to hold a hearing on the disqualification motion 

under AS 22.20.020(c). Although AS 22.20.020(c) provides that the question of 

disqualification will be “heard and determined by another judge,” it also provides that 

the “hearing may be ex parte and without notice to the parties or judge.” Therefore, 

AS 22.20.020(c) does not entitle Todd to the evidentiary hearing he requested. 

IV. CONCLUSION 

We AFFIRM the superior court’s judgment. 

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