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THE SUPREME COURT OF THE STATE OF ALASKA

CONNIE STOCKTON

,

Appellant

,

v.

VERAL STOCKTON

,

Appellee

. )

) Supreme Court No. S

- 18272

Superior Court No. 4FA

- 12

- 02356 CI

O P I N I O N

No. 7666

– July 14, 2023 )

)

)

)

)

)

)

)

A ppeal from the Superior Court of the State of Alaska,

Fourth Judicial District, Fairbanks

, Paul R. Lyle , Judge.

A ppearances: Lance Christian Wells

, Law Offices of Lance

Christian Wells , LLC, Anchorage

, for Appellant

. Christopher E. Zimmerman

, Zimmerman & Wallace

, Fairbanks

, for Appellee

.

Before: Winfree

, Chief Justice, Maassen, Carney,

Borghesan, and Henderson, Justices.

BORGHESAN, Justice.

INTRODUCTION

A woman challenges the superior court’s order denying relief from

judgment under Alaska Civil Rule 60(b). She seeks to overturn a default judgment,

entered against her in 2013, that divided marital property upon divorce from her

husband. Asserting that she suffered from severe depression during the divorce

proceedings and that her husband improperly served the notice of default, she arguesthat the judgment was void for lack of due process and, alternatively, should be vacated

due to extraordinary circumstances

. We affirm the superior court’s factual finding that

she was not incompet ent at the time of divorce and its legal rulings that the judgment

was not void and extraordinary circumstances warranting relief were not shown

.

FACTS AND PROCEEDINGS

A. Facts

Connie and Veral Stockton were married in 1981 in Washington. In 2007

Connie be gan suffering from severe depression. She and Veral moved to Alaska in

2009

. H er depression continued.

Veral filed for divorce in 2012. Connie was personally served with the

complaint for divorce at the marital home in Fairbanks , where she was still living at the

time. Connie then moved back to Washington. In early 2013 Veral applied for entry

of default after Connie failed to answer the complaint. The party filing an application

for default must state whether the party against whom default is sought is mentally

incompetent. 1 Veral indicated Connie was not mentally incompetent

. Veral served a

copy of the application by mailing it to Connie at the marital home in Fairbanks despite

knowing that she had moved to Washington. Connie did not respond, and a d efault was

entered against her

.

B. Proceedings

1. Connie’s R ule 60(b) m otion

In January 2021 Connie moved for relief from judgment. Connie argu ed

that the judgment was void due to her mental illness and the defective service of the

default application

. 2 She also argued that she was entitled to relief because property

1 Alaska R. Civ. P. 55(c)( 2 ).

2 Alaska R. Civ. P. 60(b)(4) (permitting court to grant relief from judgment

where judgment is void).

- 2- 7666division in the default divorce decree was “ poorly thought out. ” 3 Veral opposed.

Connie and Veral testified at an evidentiary hearing.

a. Connie’s t estimony

Connie testified that from 2007 to around 2019 she was suffering from

severe mental illness. S he testified that she was “ basically bedridden ,” spending

approximately 20 to 22 hours in bed every day , from 2007 to 2015

. But Connie also

testified that during that time she was able to engage in activities such as driving long

distances and caring for her grandchild. Connie testified that in 2012 she gave her son

a power of attorney to take care of her financial affairs because she was “severely

depressed and did not feel that [she] could do it [herself].”

Regarding the divorce proceedings, Connie assert ed that when she was

personally served with the summons and complaint in 2012, she did not understand

what the documents meant because of the severity of h er depression . Connie also

explained that she had relocated to Washington before Veral sent notice of the

application for default to the Fairbanks home . She testified that Veral knew she was no

longer living in Fairbanks because he helped arrange her mov e

.

Connie testified that she began taking charge of her own personal affairs

again at some point in 2019. She said it was also in 2019 that she first looked at her

divorce papers and felt that the property division was not fair or equitable. When asked

why she did not seek relief at that point, Connie responded, “I did not feel that my

mental health was back in order to handle all the details and stress to get things legally

done.” Connie also cited her financial situation as reason for not moving for relie f until

January 2021 . She stated she had to wait to come up with money to pay for an attorney

a nd to “ feel that [she] could deal with the expenses.”

- 3- 7666 3 Alaska R. Civ. P. 60(b)(6) (permitting court to grant relief from judgment

for “any other reason justifying relief from the operation of the judgment ” ).Connie urged the superior court to reconsider the marital property

division. She asserted that Veral withheld certain facts during the default hearing, and

so was awarded a disproportionate amount of the marital estate including her

inheritance from her deceased mother

.

b. Veral’s t estimony

Veral acknowledged sending the notice of default to Fairbanks d espite

knowing Connie had already moved back to Washington

. He conceded he knew how

to contact her in Washington and even paid her rent and utility bills while she was there

.

Veral stated he served the notice of default in Fairbanks because he “did not have the

benefit of legal counsel. [He] was under the impression that [he] was required to serve

Connie at the address where she was served with the [c] omplaint

, so [he] did so.”

Regarding Connie’s allegation that Veral kept her inheritance and did not di sclose it to

the court at the default hearing, Veral stated he did not keep the money and that all

remaining funds from Connie’s inheritance were deposited in Connie’s separate

checking account.

2. Superior c ourt’s f indings

T he superior court denied Connie’s motion for relief . The court found

that “evidence establishes that Connie was suffering from depression from 2012

through January 2015

, ” but also determined that Connie “regained her cognitive

function and was capable of te nding to her legal affairs” sometime between the

beginning of 2015 and the end of 2018. The court was “concerned” that Connie did not

submit any medical records dated after 2015 . Citing Connie’s own testimony that she

began taking care of some of her own financial affairs before 2019, the court reasoned

that “[a] person who can pay [her] own bills, live in [her] own apartment, get up every

morning to care for young children throughout the day without incident, and prepare

meals is not likely incompetent to attend to [her] legal affairs.”

-4- 7666The court also found that Veral did not misrepresent Connie’s competency

when he filed the application for default in 2013. The court reasoned that Connie’s

ability to care for a grandchild gave Veral reason to conclude she was competent.

The court found that Connie had not shown that she was too depressed to

understand the import of the divorce complaint and summons or to file an answer. T he

court pointed to Connie’s 25 years of employment as court clerk in Wash ington and

found it “inconceivable that Connie’s depression was so debilitating that she would not

have understood the import of a summons and complaint.” The court did not credit

Connie’s claim that she was forced to delay filing her motion to gather fun ds because

in mid

- 2019 her retirement account had at least $32,000 in it. It found that this was the

same retirement account from which she ultimately withdrew funds to pay for her

attorney.

STANDARD OF REVIEW

“ We review the superior court ’s findings of fact for clear error. ” 4 “A

finding is clearly erroneous if we are ‘left with a definite and firm conviction that the

trial court has made a mistake.’ ” 5 We review t he denial of a motion for relief from

judgment under Rule 60(b)(4) de novo. 6 W hether the mutual exclusivity rule bars relief

under Rule 60(b)(6) is also a question of law we review de novo. 7

4 Rohde v. Rohde , 507 P .3d 986, 991

- 92 (Alaska 2022) (citing Aubert v.

Wilson , 483 P.3d 179, 186 (Alaska 2021) ).

5 Id. at 992 (quoting Fredrickson v. Button

, 426 P.3d 1047, 1052 (Alaska

2018) ).

6 Blaufuss v. Ball

, 305 P.3d 281, 285 (Alaska 2013)

.

7 See Chena Obstetrics & Gynecology, P.C. v. Bridges , 502 P.3d 951, 963

­

64 (Alaska 2022), reh ’ g denied (Feb. 14, 2022) (applying independent judgment to

question whether mutual exclusivity rule bars relief under Rule 60(b)(6)); Vill. of

C

hefornak v. Hooper Bay Const r . Co

., 758 P.2d 1266 , 1270

- 71 (Alaska 1988) (same).

- 5- 7666DISCUSSION

A. The Superior Court Did Not Err By Denying Relief U nder Rule

60(b)(4)

.

Rule 60(b)(4) permits a court to grant relief from a final judgment if the

judgment is void. A “judgment is not void merely because it is erroneous .” 8 A

judgment is void only “ if the issuing court lacked subject matter jurisdiction or violated

due process .” 9 A judgment that is merely voidable , rather than void, does not justify

relief under Rule 60(b)(4). 10 Connie argues that the default judgment was void because

she was suffering from severe depression when it was entered and because the notice

of default was not properly served on her

. 11

1. The s uperior c ourt’s f inding that Connie was not incompetent

was not clearly erroneous.

We have never addressed the question whether a judgment entered against

an incompetent person is void as a matter of law. J urisdicti ons that have addressed this

question generally hold that a judgment entered against an incompetent party is merely

voidable, not void. 12 But we need not decide this question because the superior court

did not clearly err in finding Connie was competent.

8 Blaufuss , 305 P.3d at 28 6

.

9 Id

. at 285.

10 Heber v. Heber

, 330 P.3d 926, 930 (Alaska 2014).

11 Connie’s allegations and arguments largely sound in fraud, which is more

properly addressed under subsection (b)(3) as “ fraud

. . . , misrepresentation, or other

misconduct of an adverse party .” But her motion for relief from judgment would not

have been timely un der that subsection, which has a strict one

- year deadline, and she

does not expressly invoke it

. See Alaska R. Civ. P. 60(b) (“The motion shall be made

within a reasonable time, and for reasons (1), (2) and (3) not more than one year after

the date of not ice of the judgment

. . . . ”).

12 Hudnall v. Sellner , 800 F.2d 377, 385 (4th Cir. 1986) (“[J]udgments

entered against even legally adjudicated mental incompetents not represented by natural

or appointed guardians are not void on the basis alone of their incompetence and lack

- 6- 7666The superior court did not credit Connie’s assertion that she was

in competent. T he court found it “inconceivable that Connie’s depressio n was so

debilitating that she would not have understood the import of a summons and complaint

or

. . . what would happen if she failed to answer or appear

. ” This finding rested on

Connie’s 25

- year history as a court clerk and the fact that by 2012 she wa s well enough

to care for her young grandchild. Given the evidence in the record, we do not have a

firm conviction that the superior court made a mistake.

2. Failure to serve notice of default on Connie did not violate due

process , so the judgment is not voi d.

Connie argues that the judgment is void because Veral violated her due

process rights when he knowingly sent the notice of the default application to an address

at which she no longer resided . S ervice of process often implicates due process

concerns

. 13 But failure to effectively serve a notice of default does not amount to a due

process violation, so the error does not make the judgment against Connie void.

of representation.”); Scott v. United States , 190 F.2d 134, 137 (5th Cir. 1951) ( “Lack of

proper representation of a mental incompetent does not of itself render a judgment

against him void. Such a judgment is merely voidable, good until set aside on direct

attack.”); McCampbell v. Warrich Corp.

, 109 F.2d 115, 118 (7th Cir. 1940) ( hol ding

that after jurisdiction attaches “ the decree of the court must be sustained against

collateral attack regardless of how erroneous it may be in other respects ” and applying

rule to mentally incompetent persons) ; Mitchell v. Gales

, 61 A.3d 678, 685 (D.C . 2013)

(“ [A] judgment entered against an incompetent party is not void, but merely

voidable. ”); Williams v. Pyles , 363 S.W.2d 675, 678 (Mo. 1963) (holding judgment

entered against mentally incompetent party is voidable); Hodges v. Hodges , 435 P.2d

784, 788 (Mont. 1967) ( holding judgment entered against mentally incompetent party

is “at most merely voidable,” not void ); McCaughey v. Lester , 278 P.2d 826, 828 (Okla.

1954) ( holding judgment against mentally incompetent person is not void ); Withrow v.

Smithson , 17 S.E. 316, 316 (W. Va. 1893) (same).

13 See Beam v. Adams , 749 P.2d 366, 367 (Alaska 1988) (“ Service of process

is a preliminary requirement to a court obtaining personal jurisdiction over a party. It

satisfies the notice requirement essential to due process of law. ”)

.

-7- 7666“An ‘elementary and fundamental’ requirement of procedural due process

is notice reasonably calculated, under all the circumstances, to inform interested parties

of action affecting their property rights.’ ” 14 “[T] aking a default judgment without

notice, while a serious error, should not ordinarily be regarded as rendering the

underlying judgment void.” 15 Yet failure to comply with notice requirements “in

c onjunction with other irregularities may render the judgment voi d .” 16

It is undisputed that Veral failed to serve the default application on Connie

in a ccordance with our civil rules. Alaska Civil Rule 55(a)(1) requires that “the party

seeking default must serve the application on all parties, including the party against

whom the default is sought, in accordance with Civil Rule 5.” Alaska Civil Rule 5(b)

provides for effective service at multiple locations, but if service is being delivered by

mail to an unrepresented party, the rule specifies that service must be made by

delivering a copy to the party’s “last known address.” 17

T he history of Civil Rule 55(a)(1) shows we have never understood

service of a default application on a nonappearing party to be a requirement of due

process

. The rule has not always required service of a default application on a

nonappearing party. In 1987 the rule was amen ded to expressly state that service of the

14 City of Homer v. Campbell , 719 P.2d 683, 686 (Alaska 1986) (quoting

Mullane v. Cent

. Hanover Bank & Tr

. , 339 U.S. 306, 314 ( 1950) ).

15 Kenai Peninsula Borough v. English Bay Vill

. Corp.

, 781 P.2d 6, 10

(Alaska 1989)

, disapproved of on other grounds by Hatten v. Hatten , 917 P.2d 667

(Alaska 1996)

.

16 Id. (quoting 7 J. M OORE & J. L UCAS

, M OORE ’ S F EDERAL P RACTICE ¶

60.25[2], at 60 -23 7 to

- 238 (2d ed. 1985)).

17 In her brief Connie references Civil Rule 5(f). That subsection addresses

the requirements for proof of service, so it is not applicable. Civil Rule 5(b) addresses

the requirements for effective service.

-8- 7666default application on a nonappearing party was not required. 18 We amended the rule

again in 2012 to require service on the nonappearing party

, but did not cite to

constitutional concerns in making this change

. 19

Our case law also supports the conclusion that the default judgment

against Connie is not void. I n Kenai Peni n sula Borough v. English Bay Village Corp.

we held that failure to serve an application for default on a party was a serious

procedural error

, but it did not void the default judgment if the party being served had

reason to know the suit against it was ongoing. 20 Connie had reason to know the action

against her was ongoing because she had been properly served with the summons and

complain t

.

In support of Connie’s argument that her due process rights were violated,

she relies heavily on two cases, but both are inapposite. C onnie first points to our

decision in Aguchak v. Montgomery Ward Co. 21 I n that case an indigent couple living

in Scammon Bay received a summons to appear in small claims court in Anchorage

. 22

T he summons did not mention that the defendants had the option to respond by a written

pleading

. 23 W e held this deficiency in the summons violated due process because the

defendants were not give n sufficient information to mount a defense

. 24

18 See Alaska S upreme Court Order No. 787 (Dec. 1 5, 1986) ( “Service of

the application is not required if the party has failed to appear.”).

19 Alaska S upreme Court Order No. 1771 (Apr

. 16, 2012).

20 781 P.2d at 10

- 11.

21 520 P.2d 1352 (Alaska 1974).

22 Id. at 1353

.

23 Id.

24 See id. (stating that because c ourt did not inform “the indigent bush

defendant of the right to file a written pleading

, ” summons was not “ ‘ reasonably

calculated . . . to . . . afford him an opportunity ’

. . . ‘ to be heard at a meanin [g] ful time

and in a meaningf ul manner ’ ” (first quoting Mullane v. Cent

. Hanover Bank & Tr

. , 339

U.S. 306, 314 ( 1950) ; then quoting Bush v. Reid , 516 P.2d 1215 (Alaska 1973) ))

.

-9

- 7666By contrast

, Connie had the necessary information to mount a defense.

Connie was aware that Veral had filed for divorce because she was personally served

with the complaint. She does not argue that the complaint lacked sufficient information

to allow her to respond, as in Aguchak . And although she maintains she was too

depressed to understand the importance of the complaint, the court found that assertion

not credible. The Aguchak decision does not support Connie’s claim for relief.

Connie ’s reliance on State, Dep artment of Correction s v. Kila, Inc. is

misplaced too

. 25 Kila concerned defective service und er Alaska Civil Rule 4, not Civil

Rule 5. 26 These two rules cover different kinds of service. Civil Rule 4 outlines the

requirements for service of a summons and complaint

. C orrect service of the summons

and complaint is “necessary to effect personal jurisdiction ,” without which there is no

due process

. 27 In this case personal jurisdiction attached with valid service of the

summons and complaint, which gave Connie notice of the action against her. Kila does

not apply here.

Because Connie ’s judgment is not void

, the superior court did not err by

denying relief under Civil Rule 60(b)(4).

B. The Superior Court Did Not Err By Denying Relief F rom Judgment

Under Rule 60(b)(6 ).

Connie next argues that she is entitled to relief from judgment und er Civil

Rule 60(b)(6). A “ party can invoke subsection (b)(6) only if none of the other five

clauses apply and ‘ extraordinary circumstances ’ exist.” 28 The s uperior c ourt ruled that

Connie’s claim did not qualify for relief under Rule 60(b)(6) because it essentially

25 884 P.2d 661 (Alaska 1994) (holding default judgment was void for

improper service of process under Civil Rule 4).

26 Id. at 661

- 62.

27 Id. at 662.

28 Powell v. Powell

, 194 P.3d 364, 371 (Alaska 2008) (quoting Juelfs v.

Gough

, 41 P.3d 593, 597 (Alaska 2002)).

- 10

- 7 666sought relief for excusable neglect, which falls under subsection (b)(1). This ruling was

correct. 29 For example

, in Rapoport v. Tesoro Alaska Petroleum Co

. a litigant sought

relief from a default judgment. 30 T he litigant alleged he had been too ill to respond

when he was served because he was suffering from depression and other medical

conditions at the time. 31 We addressed his motion under subsection (b)(1), requiring

him to prove “excusable neglect.” 32 Beca use the grounds for relief asserted by Connie

fall within subsection (b)(1)’s provision for “excusable neglect,” and because the time

for seeking relief under that subsection had expired, 33 the superior court did not err by

denying relief.

29 See, e.g.

, Cook v. Rowland

, 49 P.3d 262, 265 (Alaska 2002) (addressing

motion for relief under subsection (b)(1) when litigant alleged h e failed to respond to

summons because he was suffering f rom two gunshot wounds, recovering f rom surgery,

and under influence of pain medication); L ovell v. Lovell , 645 P.2d 151, 154 (Alaska

1982) (addressing motion for relief under subsection (b)(1) when litigant alleged she

had “ long history of medical and psychological problems” and could not afford to travel

for divorce hearing); Gregor v. Hodges , 612 P.2d 1008, 1010 (Alaska 1980) (addressing

motion for relief under subsection (b)(1) when litigant alleged she did not understand

service when bedridden and under influence of pain medication).

30 790 P.2d 1374 (Alaska 1990).

31 Id. at 137 5

.

32 Id. at 137 7 (holding superior court did not clearly err in determining

litigant’s claims lacked credibility and ruling he was not entitled to relief under Rule

60(b)(1)).

33 See Alaska R. C iv. P. 60(b) (“The motion shall be made within a

reasonable time, and for reasons (1), (2) and (3) not more than one year after the date

of notice of the judgment

. . . . ”).

Connie also argues AS 09.10.140 toll ed the length of time within which

she could file her Civil Rule 60(b) claim for relief. Alaska Statute 09.10.140(a)

provides that if a person is “incompetent by reason of mental illness or mental

disability, ” then the time of disability “ is not a part of the time limit ” for commencement

of a civil action, but may not ext end the time limit for “longer than two years after the

disability ceases.” We need not decide whether this statute applies to toll the time for

- 11

- 7666CONCLUSION

We AFFIRM the superior court’s order denying relief from judgment.

f

iling a motion under Civil Rule 60(b). Because the superior court did not clear ly err

by finding that Connie was not mentally incompetent, Connie would not qualify for

tolling under AS 09.10.140(a) even if the statute otherwise applied

.

- 12

- 7666