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Fernandez v. Fernandez

Supreme Court of Alaska

August 28, 2015


Appeal from the Superior Court No. 3AN-86-09323 of the State of Alaska, Third Judicial District, Anchorage, Patrick J. McKay, Judge.

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.


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).


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.

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 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 ...

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