JEAN R. KOLLANDER, Appellant,
v.
DARYL E. KOLLANDER, Appellee.
Appeal
from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, No. 3AN-90-06548 CI, Mark
Rindner, Judge.
Stephen Merrill, Anchorage, for Appellant.
David
W. Baranow, Law Offices of David Baranow, Anchorage, for
Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
CARNEY, Justice.
I.
INTRODUCTION
Jean
Kollander filed suit in 2012 to reopen a qualified domestic
relations order (QDRO) entered pursuant to her 1991 divorce.
The superior court dismissed the suit based on laches and
awarded full attorney's fees to her former husband, Daryl
Kollander. Jean appealed. We affirmed the superior
court's substantive decision but remanded for
recalculation of attorney's fees in accordance with
Alaska Rule of Civil Procedure 82. On remand the superior
court awarded attorney's fees to Daryl based on 60% of
his reasonable actual attorney's fees. The court also
issued an Alaska Rule of Civil Procedure 11 sanction against
Jean's attorney, Stephen Merrill, for filing additional
motions after remand that were not well-grounded in fact or
based on a reasonable inquiry into the facts. Jean now
appeals the attorney's fee award and the Rule 11 sanction
against Merrill. We conclude that the superior court did not
abuse its discretion either in determining the attorney's
fee award or in sanctioning Merrill under Rule 11.
II.
FACTS AND PROCEEDINGS
Daryl
and Jean Kollander married in 1969 and divorced in 1991. The
QDRO entered pursuant to their divorce granted each party a
share of the other's retirement benefits. Daryl has been
receiving monthly payments from Jean's pension since
2001. When Daryl retired in 2007 the federal Office of
Personnel Management informed Jean that she would receive her
share of Daryl's pension as a lump sum of $22, 459.81,
paid in monthly installments of $ 1, 796.50. Jean received
the final payment in 2008.
In 2012
Jean moved to reopen the QDRO and to hold Daryl in contempt
for failing to pay her the marital share of his retirement
benefits because she received a lump sum instead of lifetime
payments from Daryl's pension. The superior court ruled
that Jean's suit was barred by laches, and it awarded
full attorney's fees to Daryl. Jean appealed the decision
to this court. In Kollander v. Kollander (Kollander
I) we affirmed the superior court's application of
laches but, finding the full attorney's fee award
unsupported by the record, remanded for recalculation of the
attorney's fee award in accordance with Rule
82.[1]
In
June 2014 the superior court held a hearing on remand to
reassess the attorney's fee award. At the hearing Daryl
asked for enhanced attorney's fees, arguing that the case
involved complex issues including laches and "an obscure
conspiracy, " and that a significant amount of money was
at stake. He argued that "all of [Jean's] claims
were patently unreasonable" and that Jean had engaged in
"vexatious or bad faith conduct" such that the
court could award full attorney's fees.
Jean
responded by first arguing that the case was disposed of
without a trial and so should be subject to a 20 percent
default fee under Rule 82, rather than a 30 percent default
fee.[2]
She next argued that her claim was reasonable and that our
decision on the merits in Kollander I was
"plain wrong." She finally argued that the
attorney's fee award should be reduced because an
enhanced fee award "would certainly deter a claimant...
who brings a case, no doubt about it, " although she was
unable to articulate why she believed that was the case.
The
superior court found that Daryl remained the prevailing party
and determined that it would apply the Rule 82 schedule for a
claim contested with trial. The court departed from the
default attorney's fee based primarily on its assessment
of the reasonableness of the parties' claims and
defenses, pursuant to subsection 82(b)(3)(F). The court found
Jean's claims unreasonable due to the lack of evidence to
support her arguments and the amount of time that had passed
before she brought her claims. Because Jean also denied the
legitimacy of this court's decision on appeal and
attempted to re-argue the merits of the case, the superior
court determined that her argument on remand was also
unreasonable. The court found Daryl's defense of laches
reasonable given the 21-year period between the initial
divorce decree and the present claim. The court awarded 60%
of Daryl's full and reasonable attorney's fees,
including those fees incurred in the first round of
litigation and those incurred on remand, but not those
incurred in the first appeal to this court.
In May
2015 Daryl's attorney, David Baranow, submitted his fee
and cost accounting to the superior court. He listed $8,
190.01 for the initial 2012 litigation and $2, 062.40 for
services provided on remand, and accordingly requested a 60%
fee award of $6, 061.50. Two days later Merrill sent Baranow
an email criticizing the court's treatment of the case
and implying that Jean had moved or would move to Central
America to avoid paying Daryl. Merrill followed this email
with another in June 2015, personally disparaging Baranow.
After conferring with Bar Counsel, Baranow provided the court
a copy of this correspondence "as a matter of... ethical
disclosure."
In June
2015 Jean filed a motion for extension of time to reply to
Daryl's attorney's fee accounting; Daryl opposed the
motion. Jean then filed a motion to void the attorney's
fee award, complaining that Baranow's submission to the
court of Merrill's emails "foul[ed] this record by
trying to jar this Court's objectivity and independence
of judgment with a controversial pleading unknown to the
law." At a status hearing scheduled after Jean's
motion was submitted, she requested that the assigned judge
either void the attorney's fee award or recuse himself.
The judge found no basis for recusal and denied Jean's
motion, noting that the motion "border[ed] on the
frivolous." Another superior court judge affirmed his
decision.
Jean
then moved for the entry of contempt citations and show cause
orders against Daryl and Baranow. She asserted that Daryl had
perjured himself at trial by stating that he did not receive
a disputed home-closing document from Wells Fargo Bank. The
court investigated these allegations and found that the
document, which Jean claimed Daryl had obtained from Wells
Fargo prior to a 2012 evidentiary hearing, was actually
provided to Daryl and Baranow by Merrill himself: Merrill had
attached the document to one of his reply briefs. The court
therefore denied Jean's motions and ordered Merrill to
show cause why he should not be sanctioned under Rule 11 for
submitting motions based on untrue information.
At an
August 2015 show cause hearing, for which Merrill failed to
appear, the court found that Merrill should have known that
his statements regarding the home document were
"factually . . . incorrect, untrue, [and] false."
Having concluded that Merrill violated Rule 11(b)(3), which
requires factual claims in court filings to have evidentiary
support, the court also found that the motions were submitted
for an "improper purpose" - to increase litigation
costs - in violation of Rule 11(b)(1). As a sanction for the
Rule 11 violation, the court ordered Merrill personally to
pay the full attorney's fees incurred in responding to
the motions.
On
August 31 Merrill moved to reopen the Rule 11 sanction
proceedings, stating that he was outside of Alaska for
depositions and had not received the show cause order until
after the August hearing. The court granted his request and
set another hearing for October 2015.
Merrill
failed to appear again for the October hearing. The
court's findings at the October hearing mirror the
findings from the August hearing. Because Merrill had failed
to review his own case file before submitting the motions,
the superior court found that he did not make a reasonable
inquiry into the factual basis of the motions. The court said
that had Merrill reviewed his case file at any time before
filing the motions to hold Daryl and Baranow in contempt,
Merrill would have discovered the lack of evidentiary support
for the motions. The court therefore reiterated its order
requiring Merrill to pay Baranow the full amount of
attorney's fees incurred in responding to the motions.
Jean
now appeals the award of enhanced attorney's fees under
Rule 82 and the Rule 11 sanction imposed against
Merrill.[3]
III.
STANDARDS OF REVIEW
"We
review awards of attorney's fees for abuse of discretion
and will reverse 'if the award is arbitrary, capricious,
manifestly unreasonable, or improperly motivated.'
"[4] In granting an attorney's fee award,
"[t]he determination of which party is the prevailing
party is ... subject to the trial court's discretion and
is reviewable only for abuse of
discretion."[5]
"We
review the award of sanctions under Rule 11 for abuse of
discretion"[6]and will "review[] all factors
relevant to the issue of whether the attorney's inquiry
into facts and law was reasonable under an abuse of
discretion standard."[7]
IV.
DISCUSSION
A.
Legal Background
1.
Alaska Rule of ...