Opinion
Supreme Court No. S-10897.
September 29, 2004.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Mark Rindner, Judge. Superior Court No. 3AN-00-12242 Civil.
Laura Ann Ogar, pro se, Bay City, Michigan, Appellant. William T. Ford, Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Laura Ogar challenges the superior court's order enforcing its property award in a divorce case, arguing that the superior court abused its discretion when it ordered her to pay her former spouse, James Weise, replacement cost damages after she sold a tree house that was awarded to him. Because Laura cannot collaterally attack the underlying divorce order in her challenge to the enforcement order, we need not address Laura's contention that the superior court erred in its initial decision to award James the tree house. And because the superior court has broad discretion to enforce its own divorce decree, the superior court did not err when it awarded James compensation for the tree house.
We recently decided another appeal, Weise v. Ogar, in which James Weise contested other aspects of the superior court's property and custody decision. Mem. Op. J. No. 1166 (Alaska, April 7, 2004), 2004 WL 759187.
II. FACTS AND PROCEEDINGS
James Weise and Laura Ogar were married on October 24, 1998. Laura had a son, Reid, from a previous marriage. Shortly after the wedding, with Laura's permission, James, who was now a stepparent, adopted Reid. After sixteen months of marriage, Laura and James physically separated on February 25, 2000, at Laura's request.
In June 2000, after the separation, James asked Laura if she would allow him to build a tree house for Reid on Laura's Eagle River property, where Reid resided at the time. Laura maintains that she was reluctant to permit construction of a tree house because she felt uncomfortable allowing James on her property. Despite these reservations, Laura agreed to James's request, and James constructed the tree house in August 2000.
Above the front door of the structure hung a sign with the words "Reid's Treehouse" printed in red. The tree house was not located in a tree; it was a small shed-like structure anchored in the front to inclined ground, with elevated legs in the rear.
In October 2000 Laura and Reid traveled to Michigan to visit Laura's parents due to a family medical emergency. Laura decided to move permanently to Michigan, where she and Reid now reside. Laura continues to own the Eagle River property and rents the home to tenants. She initially collected an additional rental fee from tenants for use of the tree house as extra storage space. James maintains that at the time he built the tree house, he had no notice that Laura and Reid would not reside at the Eagle River property indefinitely, or that Reid would not have the benefit of using the tree house on the property.
On December 17, 2001, Superior Court Judge Mark Rindner presided over a settlement conference on the issue of child custody. The parties were able to reach agreement on the custody issues, leaving the property issues for trial. Laura maintains that during the settlement negotiations, Judge Rindner informed her that James had made a request to have the tree house. Laura recalls telling Judge Rindner that she did not think it possible to remove the structure because it was embedded into the ground but that she would not object to James taking the tree house as long as its removal did not damage her yard.
On March 6, 2002, Judge Rindner presided over a trial to resolve property matters. In the course of the proceedings, James was asked by his attorney:
At the previous hearing you'd indicated that you would like to have had [Reid]'s treehouse removed from Laura's property and reinstalled on your own property or on one of your friend's properties so that [Reid] could . . . play in his tree house when he visited you during the summertime. Is that still your wish?
James responded that he still wanted the tree house. Judge Rindner later questioned Laura regarding the tree house, and she agreed that James could retrieve it.
The Court: Okay. The treehouse is still on the Eagle River property?
Laura: Yes.
The Court: And the Eagle River property is still owned by you, it's being rented out?
Laura: That's correct.
The Court: Okay. So the treehouse could be retrieved by Mr. Ogar if he wants to.
Laura: Well, not Mr. Ogar.
The Court: Excuse me, Mr. Weise.
Laura: Yes.
On March 14, 2002, the superior court entered findings of fact and conclusions of law regarding the division of property. On the issue of the tree house, the trial court entered the following findings:
Mr. Weise also asks the court to award him a tree house that Mr. Weise built in back of the Eagle River residence. Mr. Weise purchased the materials and built this tree house for use of his son. The court awards Mr. Weise the tree house. Mr. Weise shall remove the tree house from the Eagle River property at his own expense by June 1, 2002. He shall do so without any damage to Ms. Ogar's property. If there is any damage to Ms. Ogar's property Mr. Weise shall fully repair such damage at his own expense.
James failed to remove the tree house from the Eagle River property by the June 1, 2002 deadline, and four days later, on June 5, 2002, Laura sold the tree house to her tenant for $1,001. Laura then sent James a letter on June 7, 2002 stating: "You are hereby notified that the Treehouse (property) you have left and abandoned at this site has been sold." In September 2002 James moved to enforce the order awarding him the tree house, asking for a rescission of the sale and transfer of the tree house, or for the full replacement cost in the event that the buyer was a bona fide purchaser. In support of his motion, James maintained that Laura had informed him after the trial that her present tenants were using the tree house for storage and that he was not permitted to enter onto the Eagle River property. James explained that he was waiting for Laura to notify him before making arrangements to retrieve the tree house but did not receive any notice from Laura until she sent him a letter informing him that the tree house had been sold. In her responsive pleading, Laura denied James's assertion that she denied him permission to enter her premises to collect his property.
The superior court issued the following order on October 10, 2002:
Mr. Weise has moved for return of the tree house he was awarded in this divorce. He was to remove the tree house from Ms. Ogar's property by June 1, 2002. He did not do so and there is some dispute over whether Ms. Ogar denied him permission to come on her property. On June 5, 2002 she sold the tree house to a third party without prior notice to Mr. Weise.
The Court finds Ms. Ogar acted in bad faith in selling the tree house. It was not hers to sell. She sold the tree house for $1,001.00. The replacement cost of the tree house is $1,526.68 plus 60 hours of labor. The Court will value such labor at $10 per hour. Ms. Ogar shall pay Mr. Weise $2,126.68 by November 1, 2002. This payment may not be offset against any monies Mr. Weise owes Ms. Ogar. Failure to pay this amount shall be considered contempt of Court.
Laura moved for reconsideration of the order for compensation. The superior court denied the motion. Laura now appeals the trial court's order and requests relief from the judgment in accordance with Alaska Civil Rule 60(b). She asserts that the superior court erred in awarding compensation for the tree house because: (1) the tree house was post-marital property and a gift to their son; (2) the tree house was a fixture embedded on her property; (3) James failed to comply with the June 1, 2002 deadline for retrieving the tree house; and (4) there was insufficient evidence that she acted in bad faith and thus compensation for the tree house should not have been ordered.
III. DISCUSSION
A. Standard of Review
A trial court has "inherent power to enforce its judgments." "We will not disturb a trial court's ruling on a Rule 60(b) motion unless an abuse of discretion is demonstrated." We review findings of fact under the clearly erroneous standard. "We may affirm the superior court on any basis appearing in the record."
Johnson v. Johnson, 544 P.2d 65, 72 (Alaska 1975).
Morris v. Morris, 908 P.2d 425, 427 (Alaska 1995).
O'Connor v. Star Ins. Co., 83 P.3d 1, 3 (Alaska 2003).
Id. (quotation marks omitted).
B. The Superior Court Did Not Abuse Its Discretion by Ordering Laura To Compensate James for the Tree House.
1. Laura cannot collaterally attack the underlying divorce decision.
Laura advances several arguments challenging the trial court's disposition of the tree house, asserting that the tree house was a fixture, a gift, and post-marital property. But Laura did not timely appeal the trial court's decision after it was issued on March 16, 2002, instead waiting until the superior court issued its enforcement order on October 10, 2002 before raising these challenges as a request for relief from the judgment under Rule 60(b). We have held, however, that "Rule 60 is not a substitute for a party failing to file a timely appeal; nor does it allow relitigation of issues that have been resolved by the judgment." Laura cannot use Rule 60(b) as a vehicle to pursue an untimely appeal. Because Laura cannot "[argue] the merits of the underlying substantive issues, just as though this were an original appeal," we need not address her contentions that the trial court erred when it awarded the tree house to James after the divorce trial.
Morris, 908 P.2d at 429 (quoting Burrell v. Burrell, 696 P.2d 157, 163 (Alaska 1984)).
Morris, 908 P.2d at 429.
2. The superior court did not abuse its discretion by enforcing its order after Laura used a self-help measure in violation of the divorce decree.
We have previously adopted a policy against self-help when legal remedies are available. We have held that Alaska's forcible entry and detainer statute "forbid[s] the use of forcible self-help to regain possession of property." And we have chosen "not to adopt a policy that encourages unilateral self-help and confrontational behavior" when deciding that a plaintiff's possession of disputed property should not earn him a jury trial.
Vinson v. Hamilton, 854 P.2d 733, 737 (Alaska 1993).
McGill v. Wahl, 839 P.2d 393, 396-97 (Alaska 1992).
The trial court awarded the tree house to James during the divorce trial, and it remained James's property even after the court's time-line for removal had passed. Laura did not petition the court to address her grievances regarding James's failure to remove the property and instead resorted to an inappropriate self-help measure, selling James's property. When Laura sold James's property in violation of the divorce decree, the superior court had the inherent power to enforce the decree, and exercise of this power was not an abuse of discretion.
See Gerlach v. State, 699 P.2d 358, 362 (Alaska App. 1985) (parent "should have exhausted" her "remedies at law" and should not have resorted to self-help when she feared her husband would endanger her daughter: "[H]er failure to avail herself of those remedies preclude[d] her reliance on a necessity defense.").
Ford v. Ford, 68 P.3d 1258, 1268 (Alaska 2003); Johnson v. Johnson, 544 P.2d 65, 72 (Alaska 1975).
Laura argues that the superior court should have accepted her offer to rescind the sale and allow James to retrieve the tree house. If Laura had made this offer in response to James's motion to compel the transfer of the tree house, the superior court might not have needed to assess monetary damages for Laura's action. But Laura waited until after the superior court had issued a ruling ordering her to compensate James before she belatedly agreed to rescind the sale in her motion for reconsideration. At that point, given the heightened tensions surrounding the sale of the tree house to a third party, the concerns regarding possible damage to the property, and the history of disagreements between the parties, the superior court's decision not to reconsider its order requiring Laura to compensate James rather than allowing removal of the tree house from Laura's property was not an abuse of discretion. Finally, Laura argues that the superior court should not have ordered her to compensate James because she did not act in bad faith. But the court's compensation order was intended to make James whole and was not a sanction. Thus, the superior court's bad faith finding was not material to its order, and we need not address the bad faith finding in order to affirm the compensation order.
Although James did not directly ask the court to compensate him for his sixty hours of labor in addition to the $1,526.68 of materials, Laura does not challenge this provision of the superior court's order, and we therefore need not address this issue. Moreover, "[w]e reverse a trial court's determinations of the value of property only if clearly erroneous." Lacher v. Lacher, 993 P.2d 413, 421 n. 24 (Alaska 1999).
IV. CONCLUSION
Because Laura cannot collaterally attack the underlying divorce order and because the superior court had broad discretion to enforce its property award, the superior court did not err when it awarded James compensation for the tree house. We therefore AFFIRM the superior court's decision.