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@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

CYNTHIA FERNANDEZ, 

Appellant, 

v. 

DAVID M. FERNANDEZ, 

Appellee. 

) 

) Supreme Court No. S-15729 

Superior Court No. 3AN-86-09323 CI 

O P I N I O N 

No. 7040 – August 28, 2015 

) 

) 

) 

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) 

) 

) 

) 

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

Judicial District, Anchorage, Patrick J. McKay, Judge. 

Appearances: Cynthia Fernandez, pro se, Chugiak, 

Appellant. Roberta C. Erwin and Robert C. Erwin, 

Palmier~Erwin, LLC, Anchorage, for Appellee. 

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

Bolger, Justices. 

FABE, Chief Justice. 

I. INTRODUCTION 

A husband and wife filed for dissolution in 1986 and the court awarded the 

wife monthly child support. But the parties did not actually separate until 2007, save a 

period apart from 1997 to 2001. Their dissolution was a sham, structured to shield 

otherwise marital property from the husband’s bankruptcy. After the parties actually 
 

 

 

 

 

 

 

 

separated in 2007, the wife contacted the Child Support Services Division to enforce past 

due child support dating back to 1986, which totaled nearly $118,000. The husband filed 

a motion for relief from the child support judgment. The superior court granted the 

motion after concluding that the parties’ original dissolution had been obtained by a 

fraud on the court. The superior court used its discretion under Alaska Civil 

Rule 60(b)(6) to set aside the 1986 dissolution and order a division of property and child 

support as of 2007, when the parties actually separated. The wife appeals. Because the 

parties’ 1986 dissolution used the court system as a tool to defraud creditors and thus 

undermined the court’s integrity, we affirm the superior court’s conclusion that the 

dissolution was a fraud on the court under Rule 60(b)(6). 

II. FACTS AND PROCEEDINGS 

Cynthia and David Fernandez were married in 1979 and had two children 

together, one born in 1983 and the other born in 1985. They dissolved their marriage in 

1986. As part of the dissolution the parties agreed that David would pay Cynthia 

monthly child support. But Cynthia and David did not actually end their relationship in 

1986; they agree that they only filed for dissolution to shield some marital assets from 

creditors as part of David’s bankruptcy. They continued to live together as husband and 

wife until 1997, during which time David provided financial support for the family. 

Cynthia and David separated from 1997 to 2001 and David paid child support to Cynthia 

during that time. They resumed living together as husband and wife from 2001 until 

2007 when they separated for good. 

In 2010 Cynthia contacted the Child Support Services Division (CSSD) to 

enforce David’s child support obligation from 1986 to 2007, which totaled roughly 

$118,000. David was notified of Cynthia’s support enforcement action through an 

August 2010 letter from CSSD. In September 2010 David moved for relief from the 

child support order. 

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On August 26, 2014, the superior court concluded that “the dissolution 

proceeding was in essence a sham on the court perpetrated by both parties.” Under the 

clear and convincing standard it concluded that there was a “fraud upon the court” by 

both parties because they participated in the sham dissolution which affected David’s 

creditors. The superior court stated that “the conduct was egregious and involved a 

corruption of the judicial process,” and that “it was an intentional plan and scheme.” It 

found that the “appropriate relief” — which it concluded was to “set aside the [decree] 

of dissolution” — “may be afforded under Civil Rule 60(b)(6).” 

Rule 60(b) allows the court to set aside a final judgment for various reasons, 

such as newly discovered evidence or mistake, and for “any other reason justifying relief 

from the operation of the judgment.”1 The trial court found that it was “equitable to set 

aside the decree of dissolution, child support judgments, and property judgments entered 

in this matter under [Rule] 60(b)(6).” It then “divide[d] [the] property and determine[d] 

child support as of the date of the parties’ final separation in June 2007,” making that the 

effective date of the parties’ dissolution. 

The superior court reasoned that if the sham dissolution remained intact, 

both parties would have “secur[ed] an unfair advantage in varying ways”: 

Ms. Fernandez would receive or remain entitled to a property 

which was jointly purchased and contributed to by Mr. 

[ ] Fernandez. 2 Ms. Fernandez would also receive a windfall 

child support judgment including multiple years when the 

parties lived together and held each other out as husband and 

wife, and Mr. Fernandez jointly contributed to the support of 

the household and children. Mr. Fernandez would receive all 

1 Alaska R. Civ. P. 60(b)(6). 

2 This is the second appeal stemming from the parties’ dissolution. See 

Fernandez v. Fernandez, 312 P.3d 1098 (Alaska 2013). The first appeal concerned 

procedural matters largely unrelated to this appeal. 

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equity and title in [one] property as well as not be[ing] 

accountable for other assets which were jointly purchased 

during the period of time that they remained holding 

themselves out as husband and wife. 

The parties submitted a joint spreadsheet detailing their marital property, 

which the trial court used “to divide the property that existed as of June 2007” based on 

the “statutory factors of property settlement.” The trial court stated that its intention was 

“to draft a resolution and distribution of property that did not give either side a windfall 

from their fraudulent dissolution.” Among other findings related to specific personal 

property items, the superior court found that “an equalizing payment of $5,916.97 will 

be due from Ms. Fernandez to Mr. Fernandez in order to reach a 55/45 division of the 

estate.” 

The superior court’s ruling in that matter was consolidated with its decision 

on an April 2014 complaint that Cynthia filed to set aside quitclaim deeds that transferred 

property from David to his new wife for $10. Cynthia alleged that the conveyances were 

made by David with the intent to hinder, delay, or defraud her as a creditor based on the 

child support payments David owed Cynthia. The superior court found that the transfer 

of property “was done with the intent to keep the majority of the property unavailable 

to the recently renewed child support case,” but that no remedy was required because 

David did not actually owe Cynthia child support. It thus rejected Cynthia’s fraudulent 

conveyance claims. 

Cynthia filed a motion for reconsideration, or in the alternative, a stay, 

which the superior court denied. She appeals. 

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III.	 STANDARD OF REVIEW 

“We will not disturb a trial court’s ruling on a Rule 60(b) motion unless an 

abuse of discretion is demonstrated.”3 We also review for abuse of discretion “[a] 

superior court’s determination as to whether fraud upon the court has occurred.”4 “We 

will find an abuse of discretion when the decision on review is manifestly 

unreasonable.”5 

IV.	 DISCUSSION 

Cynthia challenges the superior court’s decision to set aside the 1986 

dissolution and child support judgments and arrears under Civil Rule 60(b)(6) based on 

its finding of fraud on the court. 

A.	 The Superior Court Did Not Abuse Its Discretion In Granting Relief 

Under Rule 60(b)(6). 

The superior court granted relief under Rule 60(b)(6) for most of David’s 

legal obligations flowing from the sham dissolution, which it found was a fraud on the 

court. Although David requested relief from the child support obligation and arrears, he 

did not frame his request in terms of Rule 60(b). Cynthia argues that the superior court 

cannot grant sua sponte relief under Rule 60(b)(6) and further contends that though 

David might have otherwise obtained relief under Rule 60(b)(3), which concerns relief 

from judgment based on allegations of fraud, misrepresentation, or other misconduct, 

3 Morris v. Morris, 908 P.2d 425, 427 (Alaska 1995); see also Hatten v. 

Hatten, 917 P.2d 667, 670 n.3 (Alaska 1996) (“[R]elief from judgment is addressed to 

the sound discretion of the trial court, and the court’s ruling will not be disturbed except 

upon a showing of abuse of discretion.”). 

4 Alaska Fur Gallery, Inc. v. First Nat’l Bank Alaska, 345 P.3d 76, 83 

(Alaska 2015); see also Allen v. Bussell, 558 P.2d 496, 499-500 (Alaska 1976). 

5 Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc., ___ P.3d ___, Op. 

No. 7003, 2015 WL 1958657, at *3 (Alaska May 1, 2015). 

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claims under that provision would be time barred by the rule’s one-year time limit. She 

also argues that relief was unavailable under Rule 60(b)(6) because David’s motion for 

relief from the child support order was not made within a “reasonable time,” as the rule 

requires. Finally, she argues that the superior court’s ruling impermissibly “rewarded 

David for his fraud” and thus violated the doctrine of in pari delicto potior est conditio 

defendentis (in pari delicto), which precludes wrongdoers from recovering damages from 

a wrongdoing where they are at “equal or mutual fault” as the defendant.6 David asks 

this court to affirm the superior court’s Rule 60(b)(6) relief and argues that the superior 

court acted within its discretion based on the evidence presented at trial. 

“The purpose of [Rule] 60(b) is to provide relief from judgments which, for 

one reason or another, are unjust.”7 Rule 60(b) sets forth six reasons for relieving a 

party from the effect of a “final judgment, order, or proceeding.”8 Reasons (3) and (6), 

which recognize two categories of fraud, are relevant here: they encompass 

6 BLACK’S LAW DICTIONARY 911 (10th ed. 2014). 

7 Wellmix, Inc. v. City of Anchorage, 471 P.2d 408, 411 n.13 (Alaska 1970). 

 “[C]hild support orders are treated like judgments,” and thus “we [have held] that trial 

courts may look to Civil Rule 60(b) for guidance in determining when relief is 

available.” State, Dep’t of Revenue, Child Support Enforcement Div. v. Maxwell, 6 P.3d 

733, 736 (Alaska 2000). 

8 In a divorce proceeding where marital property has 

been divided, a divorce decree incorporating a property 

judgment constitutes a final judgment and may be modified 

to the same extent as any equitable decree of the court. . . . 

Other than a[n Alaska] Civil Rule 77(k) motion for 

reconsideration, which must be made within ten days of the 

court’s order, an Alaska Civil Rule 60(b) motion provides the 

only available means for seeking relief from a final judgment 

of property division. 

Williams v. Williams, 252 P.3d 998, 1005 (Alaska 2011) (footnote omitted). 

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“(3) fraud . . . , misrepresentation, or other misconduct of an adverse party” and “(6) any 

other reason justifying relief from the operation of the judgment.” “For most fraud, such 

as that perpetrated by one party against another, a party can obtain relief from a judgment 

by moving under Rule 60(b)(3).”9 Such motions must be made within one year after 

entry of the judgment.10 In contrast, the savings clause at Rule 60(b)(6) “recognizes the 

inherent power of courts to set aside judgments for fraud upon the court”11 and contains 

no time limit.12 “A party can invoke subsection (b)(6) only if none of the other five 

clauses [of Rule 60(b)] apply and extraordinary circumstances exist.”13 

We have held that because Rule 60(b)(6) is “a catch-all provision [it] 

‘should be liberally construed to enable court[s] to vacate judgments whenever such 

action is necessary to accomplish justice.’ ” 14 But in light of the two distinct fraud 

9 Blanas v. Brower Co., 938 P.2d 1056, 1062 (Alaska 1997). 

10 Alaska R. Civ. P. 60(b) (“The motion shall be made . . . for reasons (1), (2) 

and (3) not more than one year after the date of notice of the judgment or orders . . . .”). 

11 Blanas, 938 P.2d at 1062; see also Allen v. Bussell, 558 P.2d 496, 499 

(Alaska 1976) (“Civil Rule 60(b) specifically notes that although its subsection (3) 

provides a method by which a judgment can be reopened because of ‘fraud . . . , 

misrepresentation, or other misconduct of an adverse party,’ the rule is not to be 

construed as a limitation of the court’s power ‘to set aside a judgment for fraud upon the 

court.’ ” (omission in original)). 

12 See Mallonee v. Grow, 502 P.2d 432, 437 (Alaska 1972) (“[T]he one-year 

time limitation does not apply to proceedings to correct orders obtained by fraud upon 

the court.”). 

13 Juelfs v. Gough, 41 P.3d 593, 597 (Alaska 2002) (quoting Lacher v. 

Lacher, 993 P.2d 413, 419 (Alaska 1999) (internal quotation marks omitted)). 

14 Clauson v. Clauson, 831 P.2d 1257, 1261 (Alaska 1992) (emphasis in 

original) (quoting O’Link v. O’Link, 632 P.2d 225, 230 (Alaska 1981)); see also Norman 

(continued...) 

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provisions of Rule 60(b), “[n]ot all fraud is ‘fraud on the court.’ ”15 

1. Fraud on the court 

Cynthia argues that the superior court incorrectly concluded that David and 

Cynthia’s 1986 dissolution was a fraud on court as contemplated by Rule 60(b). She 

asserts that fraud on the court should be “narrowly construed to embrace only that type 

of conduct which defiles the court itself.” That is precisely the type of conduct at issue 

here. 

We recently considered what constitutes fraud on the court in Alaska Fur 

Gallery, Inc. v. First National Bank Alaska: 

“Fraud upon the court” is an equitable doctrine that 

allows a court to set aside a judgment obtained as a result of 

fraudulent conduct. It is an exception to the general rule that 

courts [will] not alter or set aside their judgments after the 

expiration of the term at which the judgments were finally 

entered. In Alaska, the doctrine is codified in Alaska Civil 

Rule 60(b), whereby a court has the power to set aside a 

judgment for fraud upon the court. [T]he party claiming a 

fraud on the court bears the burden of proving the claim by 

clear and convincing evidence. 

We have noted that specific attempts to define fraud on 

the court are not particularly helpful, but have nevertheless 

14(...continued) 

v. Nichiro Gyogyo Kaisha, Ltd., 761 P.2d 713, 715 (Alaska 1988) (“This clause of 

Rule 60(b) should be liberally construed to do justice where extraordinary circumstances 

demand it.”). 

15 Great Coastal Express, Inc. v. Int’l Bhd. of Teamsters, Chauffeurs, 

Warehousemen & Helpers of Am., 675 F.2d 1349, 1356 (4th Cir. 1982); see also Kerwit 

Med. Prods., Inc. v. N. & H. Instruments, Inc., 616 F.2d 833, 836-37 (5th Cir. 1980) 

(“Only a small number of those acts that can be considered fraud amount to ‘fraud upon 

the court,’ as that phrase is used in [federal] Rule 60(b).”). Federal Rule of Civil 

Procedure 60(b) is substantively parallel to Alaska Rule of Civil Procedure 60(b). 

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consistently recognized that [a] fraud upon the court may 

only be found in the most egregious circumstances involving 

a corruption of the judicial process itself. Similarly, we have 

adopted the view that the drafters of Rule 60(b) viewed fraud 

upon the court as referring to very unusual cases involving 

[ ] far more than an injury to a single litigant. 16

Elsewhere we have noted that fraud on the court “includes behavior which 

defiles the court itself . . . . The adjudicative integrity of a court may be defiled by the 

behavior of parties or attorneys which results in depriving adverse parties of substantive 

rights.”17 

In Hazel-Atlas Glass Co. v. Hartford-Empire Co., the United States 

Supreme Court addressed the question of fraud on the court when considering a 

fraudulently prepared and published article used to support a pending application before 

the U.S. Patent Office.18 The Court held that the lower courts should have set aside a 

patent infringement judgment obtained with the fraudulently prepared article that had 

supported the patent.19 It held that the party’s actions regarding the article were a fraud 

on the court because they were “a deliberately planned and carefully executed scheme 

to defraud not only the Patent Office but the Circuit Court of Appeals.”20 The HazelAtlas Court emphasized that

 [t]his matter does not concern only private parties. There are 

issues of great moment to the public in a patent 

16 345 P.3d 76, 85-86 (Alaska 2015) (alterations in original) (internal 

quotation marks omitted). 

17 Mallonee, 502 P.2d at 438. 

18 322 U.S. 238, 240 (1944). 

19 Id. at 250. 

20 Id. at 245. 

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suit. Furthermore, tampering with the administration of 

justice in the manner indisputably shown here involves far 

more than an injury to a single litigant. It is a wrong against 

the institutions set up to protect and safeguard the public, 

institutions in which fraud cannot complacently be tolerated 

[ ] consistently with the good order of society. 21

We adhered to these principles in O’Link v. O’Link when we rejected a 

claim of fraud on the court based on a party’s failure to disclose evidence regarding 

property value, ruling that the matter “was only between the two parties and did not 

involve a direct assault on the integrity of the judicial process.”22 Other jurisdictions 

have similarly observed that “fraudulent conduct such as perjury or non-disclosure by 

a party, standing alone, is insufficient to make out a claim for fraud on the court”23 

because it “amounts to [nothing] more than fraud involving injury to a single litigant.”24 

Here, the superior court did not abuse its discretion in concluding that 

David and Cynthia’s 1986 dissolution was a fraud on the court. It determined that the 

1986 dissolution was a sham because the parties only filed for dissolution to shield 

otherwise marital property from David’s bankruptcy, a motivation that neither party 

contests. Because David and Cynthia dissolved their marriage to protect marital property 

from collection by creditors, their fraud “does not concern only private parties”25 and 

21 Id. at 246 (citation omitted). 

22 632 P.2d 225, 231 (Alaska 1981). 

23 Cvitanovich-Dubie v. Dubie, 254 P.3d 439, 456 (Haw. 2011). 

24 Gleason v. Jandrucko, 860 F.2d 556, 560 (2d Cir. 1988). 

25 Hazel-Atlas Glass Co., 322 U.S. at 246. 

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“involve[s] far more than an injury to a single litigant.” 26 Like the patent infringement 

proceedings which were the focus of the fraud on the court in Hazel-Atlas, bankruptcy 

proceedings are “institutions set up to protect and safeguard the public, institutions in 

which fraud cannot complacently be tolerated consistently with the good order of 

society.”27 Cynthia and David disrupted this good order by attempting to shield assets 

from creditors through a sham dissolution. This behavior by the parties sullied “[t]he 

adjudicative integrity”28 of the superior court because it deprived adverse parties — 

creditors — of their substantive rights to collect debts. Thus the superior court did not 

abuse its discretion in determining that Cynthia and David’s sham dissolution was a 

fraud on the court. 

2. Relief under Rule 60(b)(6) 

In Juelfs v. Gough we held that “[u]nlike Rule 60(b)(3) fraud, which can 

be brought by the court at any time, subsection (6) requires a motion be made by one of 

the parties.” 29 Cynthia argues that the superior court therefore abused its discretion by 

granting David relief under Rule 60(b)(6) when David did not explicitly rely on that 

provision. But Juelfs did not require that a motion for relief from judgment specify that 

such relief is sought under Rule 60(b)(6), and there we construed a husband’s opposition 

to his former wife’s action as such a request even though the husband did not pinpoint 

26 Alaska Fur Gallery, Inc. v. First Nat’l Bank Alaska, 345 P.3d 76, 86 

(Alaska 2015) (quoting Murray v. Ledbetter, 144 P.3d 492, 499 (Alaska 2006)). 

27 Hazel-Atlas Glass Co., 322 U.S. at 246. 

28 Mallonee v. Grow, 502 P.2d 432, 438 (Alaska 1972). 

29 41 P.3d 593, 597 (Alaska 2002) (footnote omitted). 

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Rule 60(b)(6) in his request for relief.30 We now clarify that the trial court can grant a 

motion for relief from a judgment, order, or proceeding if it was based on a fraud on the 

court, even if a party’s request for relief does not take the explicit form of a 

Rule 60(b)(6) motion. This authority is necessary for the superior court to meet its 

responsibility to uphold the court’s integrity. 

3. Reasonable time for granting relief under Rule 60(b)(6) 

Cynthia also argues that relief was unavailable under Rule 60(b)(6) because 

David’s motion for relief was not made within a “reasonable time,” as the rule requires. 

David responds that the superior court ruled properly within its broad discretion to grant 

relief. 

Cynthia suggests that the time frame we should use to evaluate whether 

David sought relief in a “reasonable time” is the time between the parties’ 1986 

dissolution and David’s 2010 motion seeking relief from the child support that had 

accrued since that sham dissolution — a 24-year gap. Conversely, David argues that the 

time frame at issue is the brief, one-month time period between when he was notified of 

Cynthia’s child support enforcement action in August 2010 through a letter from CSSD 

and his September 2010 filing of a suit to contest the support collection. David argues 

that “[t]he issue of child support never came up when the parties were living together as 

husband and wife until 2007. When the issue arose in 2010 it was promptly contested 

within a reasonable time.” 

30 See id. (noting that an opposition in which a party claimed sole custody of 

a pet was in the pet’s best interest should be “construe[d] . . . as such a request” under 

Rule 60(b)(6) because “[s]uch language is enough to warrant the trial court’s action”). 

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Relief under Rule 60(b)(6) must be requested within a “reasonable time” 

and “be made seasonably in light of all the circumstances and interests involved.”31 

“What constitutes reasonable time necessarily depends on the facts in each case. Courts 

consider whether the party opposing the motion has been prejudiced by the delay in 

seeking relief and whether the moving party had some good reason for failing to act 

sooner.”32 We have held that the trial court did not abuse its discretion by finding 

33 34 reasonable delays ranging from 17 months to 17 years. In Mallonee v. Grow, we 

noted that “[t]he time limitations on actions or motions seeking the rectification of 

injustices arising from judgments or orders obtained through fraud on the issuing court 

should be as broad as that court’s power to correct such wrongs.”35 

The superior court did not abuse its discretion in granting Rule 60(b)(6) 

relief. Cynthia, the party opposing relief from the child support order, was not 

prejudiced by the delay because she never sought child support during the years when 

David was living with her and they were holding themselves out as husband and wife. 

31 Mallonee, 502 P.2d at 437. 

32 Rowland v. Monsen, 135 P.3d 1036, 1040 (Alaska 2006) (quoting Harris 

v. Westfall, 90 P.3d 167, 173 (Alaska 2004)); see also Mallonee, 502 P.2d at 437 

(“When, as in the instant case, we must determine whether or not a time period is 

reasonable we must consider the interests of the parties and of the courts.”). 

33 Cox v. Floreske, 288 P.3d 1289, 1292-93 (Alaska 2012) (motion under 

Rule 60(b)(5)). 

34 See Inman v. Inman, 67 P.3d 655, 659 (Alaska 2003) (motion under 

Rule 60(b)(4)). 

35 502 P.2d at 437. 

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4. In Pari Delicto 

Finally, Cynthia argues that the superior court’s ruling impermissibly 

“rewarded David for his fraud” and thus violated the doctrine of in pari delicto, which 

precludes court remedies for wrongdoers in the case of “equal or mutual fault.”36 That 

defense has been applied to provide that “where the parties to a suit have been guilty [of] 

fraud in connection with the subject matter of the litigation and are in pari delicto, the 

court of equity . . . will leave them as it finds them, refusing its aid to either.”37 The 

doctrine of in pari delicto is “grounded on two premises: first, that courts should not 

lend their good offices to mediating disputes among wrongdoers; and second, that 

denying judicial relief to an admitted wrongdoer is an effective means of deterring 

illegality.”38 

But the doctrine does not limit the superior court’s authority to right wrongs 

in fulfillment of its responsibility to uphold the court’s integrity, nor should it be used 

to require that one wrongdoer pay child support to the other when the parties were not 

living apart and continued to function as a marital unit. Here, David was “an active, 

voluntary participant in the unlawful activity that is the subject of the suit,”39 and so was 

Cynthia. But Cynthia and David’s fraud offended the integrity of the bankruptcy 

proceedings and creditor protections, and thus may have interfered with the protection 

of the investing public. As a result, the doctrine of in pari delicto does not preclude the 

36 BLACK’S LAW DICTIONARY 911 (10th ed. 2014). 

37 Baker v. Nason, 236 F.2d 483, 489 n.8 (5th Cir. 1956) (quoting 23 AM. JUR. 

FRAUD AND DECEIT § 183 (1956)). 

38 Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 306 (1985) 

(footnote omitted). 

39 Pinter v. Dahl, 486 U.S. 622, 633 (1988). 

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superior court’s remedy here.40 

B.	 The Superior Court Did Not Abuse Its Discretion In Setting Aside 

Child Support Arrears And Ordering Child Support As Of The 2007 

Date Of The Parties’ Final Separation. 

The superior court ordered that David only owed child support as of 2007,41 

the date when the parties actually separated, instead of 1986, the date of the parties’ sham 

dissolution. Cynthia argues that this retroactive vacation of child support violates federal 

and state law. She points to Alaska Civil Rule 90.3(h)(2), which states that “[c]hild 

support arrearage may not be modified retroactively” unless paternity is disestablished. 

Cynthia also points to 42 U.S.C. § 666, which requires states to adopt procedures to 

prohibit retroactive reduction of child support obligations in order to be eligible for 

federal grants.42 We have previously recognized that, “[i]n general, Alaska and federal 

law prohibit courts from retroactively modifying child support orders.”43 David asks that 

we affirm the superior court’s order with regard to child support.44 

40 See id. (holding that the defense of in pari delicto is unavailable if 

preclusion of the suit interferes with protection of the investing public). 

41 Though the superior court concluded that David owed child support during 

the period from 1997-2001 that the parties were separated, it concluded that David had 

already paid that support. 

42	 See 42 U.S.C. § 666(a)(9)(C) (2012). 

43 Skan v. State, Dep’t of Revenue, Child Support Servs. Div., Mem. Op. & J. 

No. 1329, 2009 WL 279097, at *3 (Alaska Feb. 4, 2009). 

44 David also argues that Cynthia surpassed the five-year time limitations in 

AS 09.35.020 and Alaska Civil Rule 69(d) for enforcing child support judgments. But 

judgments can be executed upon beyond those time limits if “good cause” is 

demonstrated for the delay. See, e.g., State, Dep’t of Revenue, Child Support 

Enforcement Div. ex rel. Inman v. Dean, 902 P.2d 1321, 1324 (Alaska 1995). Because 

(continued...) 

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We briefly considered whether “Rule 90.3(h)(2)’s prohibition on retroactive 

modification applies where a party seeks relief from judgment under Rule 60(b)” in 

Aldrich v. Aldrich.45 In Aldrich we held that “to the extent that [one parent’s] motion for 

past child support would be interpreted solely as a motion to modify child support under 

Rule 90.3(h), Rule 90.3(h)(2) bars the retroactive modification that he seeks.”46 Cynthia 

thus argues that the superior court abused its discretion in granting David relief from 

child support arrears. 

But Rule 90.3(h)(3) provides an exception to Rule 90.3(h)(2)’s bar on 

retroactive modification.47 We have explained that this exception provides that, “if the 

child or children live with the obligor parent, with the consent of the obligee parent, for 

a period greater than nine months, and the obligor parent does not make support 

payments during that time, then the obligee parent may not collect the arrears.”48 In 

Murphy v. Murphy, we stated that this rule is “based on principles of equitable estoppel” 

and “would give [an obligor parent who lived with her children] a defense if [the parent 

who is owed child support] were seeking to collect child support arrears that had not yet 

been paid.”49 

44(...continued) 

the superior court made no finding as to whether good cause existed here and we resolve 

the child support issue on other grounds, we do not consider this argument. 

45 286 P.3d 504, 508 n.19 (Alaska 2012). 

46 Id. 

47 See Webb v. State, Dep’t of Revenue, Child Support Enforcement Div. ex 

rel. Webb, 120 P.3d 197, 199 (Alaska 2005). 

48 Id. (footnote omitted). 

49 Mem. Op. & J. No. 1192, 2004 WL 2680926, at *4 n.12 (Alaska Nov. 24, 

(continued...) 

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Although Rule 90.3(h)(3) is not directly applicable here because it requires 

that the obligor parent have “primary physical custody,” which David and Cynthia 

appeared to share during the periods at issue since they were living with their children 

as a family, the policy interest behind this exception governs our ruling affirming the 

superior court. That interest applies because David lived with Cynthia and his children 

from 1986 to 1997 and 2001 to 2007, and he supported them between 1997 and 2001. 

“We have previously stated that when ‘a straightforward application of [a court] rule 

yields [an] extreme or absurd . . . result,’ it may ‘require us to bend the plain language 

of the rule.’ ”50 In Webb v. State, we refused to bend the plain language of Rule 90.3 

because “[r]etroactively modifying the child support order to permit Webb to evade his 

child support obligations would result in a windfall to Webb and deprive the children of 

funds to which they are entitled.”51 Here, however, because David lived with and 

provided financial support for his children from 1986 to 1997 and 2001 to 2007, and 

actually did pay child support from 1997 to 2001, the superior court’s grant of relief 

creates no windfall to David and does not deprive his children of funds to which they are 

entitled. As a result the superior court did not abuse its discretion in setting aside 

David’s child support arrearage for the time the parties lived together as a family. 

Cynthia also challenges as a fraudulent conveyance David’s transfer of 

property to his new wife for $10. The superior court found that David’s transfer of a 

property to his new wife for $10 “was done with the intent to keep the majority of the 

49(...continued) 

2004) (citing Civil Rule 90.3(h)(3)). 

50 Webb, 120 P.3d at 199 (alterations and omission in original) (quoting 

Mundt v. Nw. Explorations, Inc., 963 P.2d 265, 270 (Alaska 1998)). 

51 Id. at 200. 

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property unavailable to the recently renewed child support case and garnishment by 

[CSSD].” But because the superior court found that Cynthia “was not owed any child 

support,” it reasoned that “no remedy is necessary.” We affirm the superior court’s order 

regarding child support and thus we do not need to address Cynthia’s fraudulent 

conveyance claims. 

V. CONCLUSION 

Because the Fernandezes committed a fraud on the court by filing a sham 

dissolution in 1986, we AFFIRM the superior court’s order. 

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