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2014 - 2015 Alaska Rules of Civil Procedure

Part I. Scope of Rules -- Construction -- One Form of Action

1 Scope of Rules -- Construction 2 One Form of Action

Part II. Commencement of Action -- Service of Process, Pleadings, Motions and Orders

3 Commencement of Action and Venue
4 Process
5 Service and Filing of Pleadings and Other Papers
5.1 Filing and Service by Facsimile Transmission and Electronic Mail
5.2 Foreign Orders and Judgments
6 Time

Part III. Pleadings and Motions

7 Pleadings Allowed -- Form of Motions
8 General Rules of Pleading
9 Pleading Special Matters
10 Form of Pleadings
11 Signing of Pleadings, Motions, and Other Papers
12 Defenses and Objections -- When and How Presented -- By Pleading or Motion -- Motion for Judgment on Pleadings
13 Counterclaim and Cross-Claim
14 Third-Party Practice
15 Amended and Supplemental Pleadings
16 Pretrial Conferences; Scheduling; Management
16.1 Special Procedures for Reducing Litigation Delay (Rescinded)

Part IV. Parties

17 Parties Plaintiff and Defendant -- Capacity
18 Joinder of Claims and Remedies
19 Joinder of Persons Needed for Just Adjudication
20 Permissive Joinder of Parties
21 Misjoinder and Non-Joinder of Parties
22 Interpleader
23 Class Actions
23.1 Derivative Actions by Shareholders
23.2 Actions Relating to Unincorporated Associations
24 Intervention
25 Substitution of Parties

Part V. Depositions and Discovery

26 General Provisions Governing Discovery; Duty of Disclosure
26.1 Discovery and Disclosure in Divorce and Legal Separation Actions
27 Depositions Before Action or Pending Appeal
28 Persons Before Whom Depositions May be Taken; Foreign Commissions and Letters Rogatory
29 Stipulations Regarding Discovery Practice
30 Depositions Upon Oral Examination
30.1 Audio and Audio-Visual Depositions
31 Depositions Upon Written Questions
32 Use of Depositions in Court Proceedings
33 Interrogatories to Parties
34 Production of Documents, Electronically Stored Information, and Things, and Entry Upon Land for Inspection and Other Purposes
35 Physical and Mental Examination of Persons
36 Requests for Admission
37 Failure to Make Disclosure or Cooperate in Discovery: Sanctions

Part VI. Trial

38 Jury Trial
39 Trial by Jury or by the Court
40 Assignment and Hearing of Cases -- Calendars -- Continuances
41 Dismissal of Actions
42 Consolidation -- Separate Trials -- Change of Judge

Part VII. Evidence and Conduct of Trial

43 Evidence
43.1 Exhibits
45 Subpoena
46 Conduct of Trials
47 Jurors
48 Order of Trial Proceedings -- Management of Juries
49 Special Verdicts and Interrogatories
50 Motion for a Directed Verdict and for Judgment
51 Instructions to Jury
52 Findings by the Court

Part VIII. Masters

53 Masters

Part IX. Judgment

54 Judgments -- Costs
55 Default
56 Summary Judgment
57 Declaratory Judgments -- Judgments by Confession
58 Entry of Judgment
58.1 Judgments and Orders -- Effective Dates and Commencement of Time for Appeal, Review and Reconsideration
58.2 Judgments for the Payment of Money
59 New Trials -- Amendment of Judgments
60 Relief From Judgment or Order
61 Harmless Error
62 Stay of Proceedings to Enforce a Judgment
63 Disability of a Judge

Part X. Provisional and Final Remedies and Special Proceedings

64 Seizure of Person or Property
65 Injunctions
65.1 Domestic Violence and Stalking Protective Orders -- Access to Information
66 Receivers
67 Deposit in Court
68 [Applicable to cases filed before August 7, 1997.] Offer of Judgment
68 [Applicable to cases filed on or after August 7, 1997.] Offer of Judgment
69 Execution -- Examination of Judgment Debtor -- Restraining Disposition of Property -- Execution After Five Years
70 Judgment for Specific Acts -- Vesting Title
71 Process in Behalf of and Against Persons Not Parties
72 Eminent Domain
72.1 Expert Advisory Panels in Health Care Provider Malpractice Actions

Part XI. Superior Court and Clerks

73 The Clerk
74 Books and Records Kept by Clerk and Entries Therein
75 Record of Proceedings -- Transcript as Evidence
76 Form of Pleadings and Other Papers -- Filing
77 Motions
78 Findings, Conclusions, Judgments and Orders -- Preparation and Submission
79 Costs -- Taxation and Review
80 Bonds and Undertakings
81 Attorneys
82 Attorney's Fees
83 Fees: Witnesses -- Physicians -- Interpreters and Translators

Part XII. Special Proceedings

84 Change of Name
85 Forcible Entry and Detainer
86 Habeas Corpus
87 Civil Arrest
88 Procedure for Claiming Delivery of Personal Property
89 Attachment
90 Contempts
90.1 Dissolution of Marriage, Divorce, and Legal Separation Actions
90.2 Settlement and Judgments in Favor of a Minor
90.3 Child Support Awards
90.4 Proceedings to Establish Parentage
90.5 Expedited Judicial Relief from Action Against Occupational or Driver's License for Unpaid Child Support
90.6 Appointment of Child Custody Investigator
90.7 Appointment of Guardian Ad Litem in Child Custody Proceedings
90.8 Expedited Applications to Compel Correction of Any Error in Redistricting Plan

Part XIII. General Provisions

91 Applicability of Civil Rules In General
92 Construction of Rules
93 Legal Effect of Rules -- Statutes Superseded
94 Relaxation of Rules
95 Penalties
97 Title
98 Effective Date
99 Telephonic Participation in Civil Cases
100 Mediation and Other Forms of Alternative Dispute Resolution

Rule 51. Instructions to Jury.

(a) Requested Instructions--Objections. At the close of the evidence or at such earlier time as the court reasonably directs, any party may file written requests that the court give the jury specific instructions. The court shall inform counsel of the final form of jury instructions prior to their arguments to the jury. Following the close of the evidence, before or after the arguments of counsel, the court shall instruct the jury. Additionally, the court may give the jury such instructions as it deems necessary at any stage of the trial. No party may assign as error the giving or the failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection. Opportunity must be given to make the objection out of the hearing of the jury, by excusing the jury or hearing objections in chambers.

(b) Instructions to Be Given. The court shall instruct the jury that they are the exclusive judges of all questions of fact and of the effect and value of evidence presented in the action. The court shall instruct the jury on all matters of law that it considers necessary for their information in giving their verdict.

(Adopted by SCO 5 October 9, 1959; amended by SCO 49 effective January 1, 1963; by SCO 79 effective February 1, 1966; by SCO 920 effective January 15, 1989; by SCO 1153 effective July 15, 1994; and by SCO 1436 effective October 15, 2001)

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Rule 52. Findings by the Court.

(a) Effect. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and judgment shall be entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b).

(b) Amendment. Upon motion of a party made not later than 10 days after the date shown in the clerk's certificate of distribution on the judgment the court may amend its findings or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for new trial pursuant to Rule 59. When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the court an objection to such findings or has made a motion to amend them or a motion for judgment.

(c) Preparation and Submission. The preparation and submission of findings of fact and conclusions of law shall be governed by Rule 78.

(Adopted by SCO 5 October 9, 1959; amended by SCO 258 effective November 15, 1976; and by SCO 554 effective April 4, 1983)

NOTE: Ch. 139, 6, SLA 1986, provided that AS 09.17.080, enacted by ch. 139, 1, SLA 1986, amended Civil Rule 52 by requiring the court to make specific findings regarding the amount of damages and the percentages of fault to be allocated among the parties.

§ 09.17.080. Apportionment of damages. (a) In all actions involving fault of more than one party to the action, including third-party defendants and persons who have been released under AS 09.17.090, the court, unless otherwise agreed by all parties, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings, indicating

(1) the amount of damages each claimant would be entitled to recover if contributory fault is disregarded; and

(2) the percentage of the total fault of all of the parties to each claim that is allocated to each claimant, defendant, third-party defendant, and person who has been released from liability under AS 09.17.090.

(b) In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault, and the extent of the causal relation between the conduct and the damages claimed. The trier of fact may determine that two or more persons are to be treated as a single party if their conduct was a cause of the damages claimed and the separate act or omission of each person cannot be distinguished.

(c) The court shall determine the award of damages to each claimant in accordance with the findings, subject to a reduction under AS 09.17.090, and enter judgment against each party liable. The court also shall determine and state in the judgment each party's equitable share of the obligation to each claimant in accordance with the respective percentages of fault.

(d) The court shall enter judgment against each party liable on the basis of joint and several liability, except that a party who is allocated less than 50 percent of the total fault allocated to all the parties may not be jointly liable for more than twice the percentage of fault allocated to that party. (§ 1 ch. 139 SLA 1986)

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PART VIII. MASTERS

Rule 53. Masters.

(a) Appointment and Compensation. The presiding judge of the superior court for each judicial district with the approval of the chief justice of the Supreme Court may appoint one or more standing masters for such district, and the court in which any action is pending may appoint a special master therein. As used in these rules the word "master" includes a referee, an auditor and an examiner, and a magistrate judge or a deputy magistrate judge. The compensation, if any, to be allowed to a master shall be fixed by the court, and shall be charged upon such of the parties or paid out of any fund or subject matter of the action which is in the custody and control of the court, as the court may direct. The master shall not retain the master's report as security for compensation; but when the party ordered to pay the compensation allowed by the court does not pay it after notice and within the time prescribed by the court, the master is entitled to a writ of execution against the delinquent party.

(b) Powers. The order of reference to the master may specify or limit the master's powers and may direct the master to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the master's report. Subject to the specifications and limitations stated in the order, the master has and shall exercise the power to regulate all proceedings in every hearing before the master and to do all acts and take all measures necessary or proper for the efficient performance of the master's duties under the order. The master may require the production of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents, and writings applicable thereto. The master may rule upon the admissibility of evidence unless otherwise directed by the order of reference and has the authority to put witnesses on oath and may examine them and may call the parties to the action and examine them upon oath. When a party so requests, the master shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in Evidence Rule 103(b) for a court sitting without a jury.

(c) Proceedings.

(1) Meetings. When a reference is made, the clerk shall forthwith furnish the master with a copy of the order of reference. Upon receipt thereof unless the order of reference otherwise provides, the master shall forthwith set a time and place for the first meeting of the parties or their attorneys to be held within 20 days after the date of the order of reference and shall notify the parties or their attorneys. It is the duty of the master to proceed with all reasonable diligence. Either party, on notice to the parties and master, may apply to the court for an order requiring the master to speed the proceedings and to make the report. If a party fails to appear at the time and place appointed, the master may proceed ex parte or, in the master's discretion, adjourn the proceedings to a future day, giving notice to the absent party of the adjournment.

(2) Witnesses. The parties may procure the attendance of witnesses before the master by the issuance and service of subpoenas as provided in Rule 45. If without adequate excuse a witness fails to appear or give evidence, the witness may be punished for a contempt and be subjected to the consequences, penalties and remedies provided in Rules 37 and 45.

(3) Statement of Accounts. When matters of accounting are in issue before the master, the master may prescribe the form in which the accounts shall be submitted and in any proper case may require or receive in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon a showing that the form of statement is insufficient, the master may require a different form of statement to be furnished, or the accounts or specific items thereof to be proved by oral examination of the accounting parties or upon written interrogatories or in such other manner as the master directs.

(d) Report.

(1) Contents and Filing. The master shall prepare a report upon the matters submitted to the master by the order of reference and, if required to make findings of fact and conclusions of law, the master shall set them forth in the report. The master shall file the report with the clerk of the court and in an action to be tried without a jury, unless otherwise directed by the order of reference, shall file with it the original exhibits. The clerk shall forthwith mail to all parties notice of the filing.

(2) In Non-Jury Actions.Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for an action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 77. In an action to be tried without a jury,

(A) if no party files objections to the report, the court may accept the master’s findings without conducting an independent review of the evidence presented to the master.

(B) if any party files objections to the report, the court shall obtain and review a transcript or electronic recording of the portions of the proceedings that relate to the objections. The court must consider under a de novo standard of review all objections to findings of fact made or recommended in the report, and must rule on each objection. However, the parties may stipulate with the court’s consent that the master’s findings will be reviewed for clear error or that the master’s findings will be final.

The court may adopt the report, may modify it, may reject it in whole or in part, may receive further evidence, or may recommit it with instructions.

(3) In Jury Actions. In an action to be tried by a jury the master shall not be directed to report the evidence. The master's findings upon the issues submitted to the master are admissible as evidence of the matters found and may be read to the jury, subject to the ruling of the court upon any objections in point of law which may be made to the report.

(4) Stipulation as to Findings. The effect of a master's report is the same whether or not the parties have consented to the reference; but, when the parties stipulate that a master's findings of fact shall be final, only questions of law arising upon the report shall thereafter be considered.

(5) Draft Report. Before filing the master's report a master may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions.

(6) Report of Magistrate Judge or Deputy Magistrate Judge. Where a magistrate judge or a deputy magistrate judge has been appointed a standing or special master for any purpose, the master's report shall include such findings of fact, transcript of evidence or proceedings and recommendations as may have been requested by the superior court in its order of reference.

(Adopted by SCO 5 October 9, 1959; amended by SCO 358 effective March 22, 1979; by SCO 888 effective July 15, 1988, by SCO 1096 effective January 15, 1993; by SCO 1153 effective July 15, 1994; by SCO 1685 effective December 19, 2008; and by SCO 1829 effective October 15, 2014)

USE NOTE to subsection (d): “Independent review” means de novo review; that standard of review does not require a new or supplementary evidentiary hearing unless the trial court in its discretion determines that such additional proceedings are necessary.

Cross References

CROSS REFERENCE: See CINA Rule 4, Probate Rule 2, Adoption Rule 3, and Delinquency Rule 4 for Appointment and Authority of Masters.

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PART IX. JUDGMENT

Rule 54. Judgments--Costs.

(a) Definition -- Form -- Preparation and Submission. "Judgment" as used in these rules includes a decree. A judgment shall not contain a recital of pleadings, the report of a master, or the record of prior proceedings. Judgments for the payment of money must be in the form required by Civil Rule 58.2. The procedure for the preparation and submission of proposed judgments and orders is governed by Rule 78.

(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

(c) Demand for Judgment. A default judgment shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a default judgment is entered, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the pleadings.

(d) Costs. Except when express provision therefor is made either in a statute of the state or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs. The procedure for the taxing of costs by the clerk and review of the clerk's action by the court shall be governed by Rule 79.

(Adopted by SCO 5 October 9, 1959; amended by SCO 258 effective November 15, 1976; by SCO 554 effective April 4, 1983; by SCO 1153 effective July 15, 1994; and by SCO 1415 effective October 15, 2000)

Note: AS 25.24.150(f), 25.24.155, and 25.24.160(c), added by ch. 76. §§ 1--3, SLA 1991, amended Civil Rule 54(b) by prohibiting the separation of claims in an action for divorce or an action declaring a marriage void without compliance with AS 25.24.155, as added by ch. 76, § 2, SLA 1991.

Cross References

(d) CROSS REFERENCE: AS 09.60.050

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Rule 55. Default.

(a) Entry.

(1) Application for Default. When a party against whom a judgment for affirmative relief is sought has failed to appear and answer or otherwise defend as provided by these rules, and that fact is shown by affidavit or otherwise, the clerk shall enter a default. 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.

(2) When Entry is Made. A party who fails to appear or who appears but fails to answer or otherwise defend may be defaulted by the clerk not less than seven days following service of the application for default.

(b) Judgment by the Clerk.

(1) Failure to Appear. If the defendant has been defaulted for failure to appear and the plaintiff's claim(s) is for a sum certain or for a sum that can by computation be made certain, upon the filing of an application for default judgment including an affidavit of the amount due which also states that the person against whom judgment is sought is: (i) not an infant or an incompetent person; and (ii) not in the active military service of the United States or, if the plaintiff is unable to determine whether the defendant is in military service, stating that the plaintiff is unable to determine that fact, the clerk shall enter default judgment for the amount due and costs and attorney’s fees against the defendant.

(2) Multiple Parties or Claims. The clerk may not enter a default judgment in a case involving multiple defendants unless all defendants have been defaulted.

(c) Judgment by the Court.

(1) In all other cases the party entitled to a default judgment shall apply to the court therefor; but no default judgment shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein. If the party against whom default judgment is sought has appeared in the action, that party (or, if appearing by representative, the party's representative) shall be served with written notice of the application for judgment at least three days prior to a decision on the application. This written notice requirement and the memorandum requirement of (c)(2) do not apply if the party fails to appear for trial in which case the court may proceed ex parte upon any motion for default or default judgment. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper.

(2) When application is made to the court for a default judgment, counsel shall file a memorandum of the default, showing when and against what parties it was entered and the pleadings to which no defense has been made. The party seeking default must also file an affidavit stating whether the person against whom judgment is sought is in the active military service of the United States or, if the plaintiff is unable to determine whether the defendant is in military service, stating that the plaintiff is unable to determine that fact. If any party against whom default judgment is sought is shown by the record to be an infant or incompetent person, or in the military service of the United States, counsel shall also file a memorandum stating whether or not that person is represented in the action by a general guardian, committee, conservator, attorney or such other representative who has appeared therein. If the party against whom default judgment is sought has appeared in the action or proceeding, the memorandum shall also indicate whether or not the record shows that notice has been served as required by paragraph (1) of this subdivision.

(3) If the amount of damages claimed in an application to the court for default judgment is unliquidated, the applicant may submit evidence by affidavit showing the amount of damages and if, under the provisions of paragraph (1) of this subdivision, notice of the application is necessary, the parties against whom judgment is sought may submit affidavits in opposition.

(4) If the case involves multiple defendants and all defendants have not been defaulted, the court may not enter a default judgment unless the nondefaulting defendant's defenses would not be available to the defaulting defendant. A default judgment issued under such circumstances is nevertheless subject to Civil Rule 54(b).

(d) Response to Pleading. A party may respond to any pleading at any time before a default is entered.

(e) Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a default judgment has been entered, may likewise set it aside in accordance with Rule 60(b).

(f) Plaintiffs, Counterclaimants, Cross-Claimants. The provisions of this rule apply whether the party entitled to the default judgment is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross-claim or counterclaim. In all cases a default judgment is subject to the limitations of Rule 54(c).

(g) Judgment Against the State. No default judgment shall be entered against the state or an officer or agency thereof unless the claimant establishes the claim or right to relief by evidence satisfactory to the court.

(h) Costs and Attorney Fees. To recover costs and attorney fees, a party entitled to entry of default judgment without the need for further hearing under (c)(1) must include in the application for default judgment (1) an itemized statement of costs incurred in the action and allowable under Civil Rule 79(f), and (2) the party's actual attorney's fees. In such case, no cost bill or motion for attorney's fees is required. Civil Rule 82(b)(4) governs the amount of attorney's fees that may be awarded in a default case.

(i) Proposed Judgment. An application for default judgment must be accompanied by a proposed judgment in the form required by Civil Rule 58.2.

(Adopted by SCO 5 October 9, 1959; amended by SCO 30 effective February 1, 1961; by SCO 498 effective January 18, 1982; by SCO 554 effective April 4, 1983; by SCO 787 effective March 1, 1987; by SCO 1415 effective October 15, 2000; by SCO 1584 effective October 15, 2005; by SCO 1663 effective April 15, 2009; and by SCO 1771 effective April 16, 2012)

Note: The affidavit described in subsections (b) and (c) incorporates the requirements of the Servicemembers Civil Relief Act (50 App. U.S.C. § 521), as amended, concerning whether a party is in the military service.

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Rule 56. Summary Judgment.

(a) For Claimant. A party seeking to recover upon a claim, counterclaim or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move for a summary judgment in the party's favor upon all or any part thereof.

(b) For Defending Party. A party against whom a claim, counterclaim or cross-claim is asserted or a declaratory judgment is sought may, at any time, move for a summary judgment in the party's favor as to all or any part thereof.

(c) Motion and Proceedings Thereon. The motion shall be made pursuant to Rule 77, and may be supported by affidavits setting forth concise statements of material facts made upon personal knowledge. There must also be served and filed with each motion a memorandum showing that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The adverse party in accordance with Rule 77 may serve opposing affidavits, a concise "statement of genuine issues" setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, and any other memorandum in opposition to the motion. Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. Summary judgment, when appropriate, may be rendered against the moving party. A decision granting a motion for summary judgment is not a final judgment under Civil Rule 58. When the decision adjudicates all unresolved claims as to all parties, the judge shall direct the appropriate party to file a proposed final judgment. The proposed judgment must be filed within 20 days of service of the decision, on a separate document distinct from any opinion, memorandum or order that the court may issue.

(d) Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

(e) Form of Affidavits - Further Testimony - Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

(f) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

(g) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.

(Adopted by SCO 5 October 9, 1959; amended by SCO 258 effective November 15, 1976; by SCO 1153 effective July 15, 1994; and by SCO 1430 effective April 15, 2002)

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Rule 57. Declaratory Judgments -- Judgments by Confession.

(a) Declaratory Judgments. The procedure for obtaining a declaratory judgment pursuant to statute shall be in accordance with these rules, and the right to trial by jury may be demanded under the circumstances and in the manner provided in Rules 38 and 39. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate.The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar.

(b) Confession Judgments -- After Commencement of Action.

(1) On the confession of the defendant, with the assent of the plaintiff or the plaintiff's attorney, a judgment may be given against the defendant in any action, for any amount not exceeding or relief different from that demanded in the complaint.

(2) The confession shall be in writing and signed by the defendant. The assent shall be in writing and signed by the parties or their attorneys. The confession and assents shall each be acknowledged before an officer authorized by law to administer oaths unless the parties or their attorneys appear in court when the judgment is given. The confession, assent and acknowledgment, if any, shall be filed with the clerk.

(c) Confession Judgments -- Without Action.

(1) On the confession of any person capable of being made a defendant to an action, judgment may be given against such person without action, in favor of anyone, either for money due or to become due, or to secure any person against contingent liability on behalf of the defendant in such judgment, or both, if it be in favor of the same person.

(2) The confession shall be made, assented to and acknowledged and judgment given in the same manner as a confession in an action pending, but in addition, the confession shall be verified by the oath of the person making it, and shall authorize a judgment to be given for a particular sum. If it be for money due or to become due it shall state plainly and concisely the facts out of which such indebtedness arose, and shall show that the sum confessed therefor is justly due or to become due. If it be for the purpose of securing the plaintiff in the judgment against a contingent liability, it shall state plainly and concisely the facts constituting such liability and shall show that the sum confessed therefor does not exceed the same. When judgment is given so as to be payable in installments, executions may issue to enforce the payment of such installments as they become due.

(Adopted by SCO 5 October 9, 1959; amended by SCO 49 effective January 1, 1963; and by SCO 1153 effective July 15, 1994)

Cross References

(b)(1) CROSS REFERENCE: AS 09.30.050; AS 09.30.060

(b)(2)CROSS REFERENCE: AS 09.30.050; AS 09.30.060

(c)(1)CROSS REFERENCE: AS 09.30.050; AS 09.30.060

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Rule 58. Entry of Judgment.

Subject to the provisions of Rule 54(b): (1) upon a general verdict of a jury, or upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied, the court or the clerk, upon direction of the court, shall forthwith enter the judgment; (2) upon a decision by the court granting other relief, or upon a special verdict or a general verdict accompanied by answers to interrogatories, the court shall promptly enter judgment. Every judgment must be set forth on a separate document distinct from any findings of fact, conclusions of law, opinion, or memorandum. Entry of the judgment shall not be delayed, nor the time for appeal extended, for the taxing of costs or the award of fees. Judgments for the payment of money must be in the form required by Civil Rule 58.2.

(Adopted by SCO 5 October 9, 1959; amended by SCO 258 effective November 15, 1976; by SCO 554 effective April 4, 1983; by SCO 1281 effective August 7, 1997; by SCO 1295 effective January 15, 1998; by SCO 1415 effective October 15, 2000; and by SCO 1482 effective October 15, 2002)

Note: Ch. 139, 1, SLA 1986, enacted AS 09.17.040 and AS 09.17.080 regarding awards of damages for personal injury and the apportionment of damages. According to Section 7 of the Act, AS 09.17.040 and AS 09.17.080 have the effect of amending Civil Rule 58. AS 09.17.040 requires verdicts to include an itemization between economic and non-economic losses, and allows for periodic payment in certain circumstances. AS 09.17.080, as amended, requires special interrogatories or findings on the amount of damages and percentages of fault, and requires that judgment be entered against each liable party on the basis of several liability.

Note: Ch. 26, 10, SLA 1997 repeals and reenacts AS 09.17.020 concerning punitive damages. New AS 09.17.020(j) requires that 50 percent of an award of punitive damages be deposited in the state general fund. This provision applies to causes of action accruing on or after August 7, 1997. See ch. 26, 55, SLA 1997. According to 49 of the Act, new AS 09.17.020(j) has the effect of amending Civil Rule 58 by requiring the court to order that a certain percentage of an award of punitive damages be deposited into the general fund.

Note: Ch. 26, 19, SLA 1997 amends AS 09.30.070 by adding subsection (c) concerning prejudgment interest on awards of future economic damages, future noneconomic damages, and punitive damages. This provision applies to causes of action accruing on or after August 7, 1997. See ch. 26, 55, SLA 1997. According to 53 of the Act, new AS 09.30.070(c) has the effect of amending Civil Rule 58 by providing that prejudgment interest may not be awarded for future economic or noneconomic damages or punitive damages.

Note: Sections 41, 43, 45, and 46 of chapter 87 SLA 1997 amend AS 25.20.050(n), AS 25.24.160(d), AS 25.24.210(e), and AS 25.24.230(i), respectively, to require that an order or acknowledgement of paternity, a divorce decree, a petition for dissolution of marriage, and a dissolution decree include the social security number of each party to the action and each child whose rights are being addressed. According to 151 of the Act, these provisions have the effect of amending Civil Rules 52, 58, 78, and 90.1 by requiring the court to include social security numbers, if ascertainable, of parties and children in certain petitions, pleadings, and judgments.

Cross References

CROSS REFERENCE: AS 09.30.010; AS 09.30.020; AS 09.17.020(j)

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Rule 58.1. Judgments and Orders-- Effective Dates and Commencement of Time for Appeal, Review and Reconsideration.

(a) Effective Dates of Orders and Judgments. Orders and judgments become effective the date they are entered.

(1) Oral Orders. The date of entry of an oral order is the date the order is put on the official electronic record by the judge unless otherwise specified by the judge. At the time the judge announces an oral order, the judge shall also announce on the record whether the order shall be reduced to writing. If the oral order is reduced to writing, the effective date shall be included in the written order.

(2) Written Orders Not Preceded by Oral Orders. The date of entry of a written order not preceded by an oral order is the date the written order is signed unless otherwise specified in the order.

(3) Judgments. The date of entry of a civil judgment is the date it is signed unless otherwise specified in the judgment. All judgments shall be reduced to writing.

(b) Commencement of Time for Appeal, Review and Reconsideration. The time within which a notice of appeal may be filed and reconsideration or review of orders and judgments may be requested begins running on the date of notice as defined below.

(c) Date of Notice.

(1) Oral Orders.

(i) As to the parties present when an oral order is announced, the date of notice is the date the judge announces the order on the official electronic record, unless at that time the judge announces that the order will be reduced to writing in which case the date of notice is the date shown in the clerk's certificate of distribution on the written order.

(ii) As to parties not present at the announcement of an oral order, the date of notice is the date shown in the clerk's certificate of distribution of notice of the order. If, however, at the time the judge announces the oral order the judge announces that the order will be reduced to writing, the date of notice is the date shown in the clerk's certificate of distribution on the written order.

(2) Written Orders. The date of notice of a written order is the date shown in the clerk's certificate of distribution on the written order.

(3) Judgments. All judgments must be reduced to writing. The date of notice of a judgment is the date shown in the clerk's certificate of distribution on the written judgment.

(4) Other Service Requirements. The notice provisions apply to the notice of orders and judgments under Rule 73(d) and do not affect the service requirements of any other rule of civil procedure.

(d) Clerk's Certificate of Distribution. Every written notice of an oral order and every written order and judgment shall include a clerk's certificate of distribution showing the date copies of the notice, order or judgment were distributed, the name of each person to whom a copy was distributed, and the name or initials of the court employee who distributed the copies.

(Added by SCO 554 effective April 4, 1983; amended by SCO 900 effective January 15, 1989; by SCO 1153 effective July 15, 1994; and by SCO 1414 effective October 15,2000)

Cross References

CROSS REFERENCE: App. R. 204

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Rule 58.2. Judgments for the Payment of Money.

(a) Form Generally. In addition to identifying each judgment creditor and each judgment debtor, a judgment for the payment of money must include the following information, if applicable, in the form shown in the sample judgment published at the end of this rule:

(1) the principal amount of the judgment;

(2) the portion of the principal that accrues prejudgment interest and the prejudgment interest rate, except as provided in (b);

(3) the date from which prejudgment interest should be calculated, except as provided in (b);

(4) a blank space for the court to fill in the amount of prejudgment interest;

(5) the amount of punitive damages, if any;

(6) a blank space for the court to fill in the amount of attorney's fees awarded;

(7) a blank space for the court to fill in the amount of costs awarded;

(8) a blank space for the total judgment amount; and

(9) the post-judgment interest rate.

(10) recognition of any interest by the State of Alaska in a punitive damages verdict.

(b) Prejudgment Interest. The total amount of prejudgment interest will be calculated by the court. If more than one interest rate applies or interest is calculated from more than one date, the interest rate and date should not be listed in the judgment as provided in (a). Instead, the party preparing the judgment must submit a separate computation sheet showing the interest calculations, including all applicable interest rates and dates, any payments, and how payments were applied to interest, costs, and principal.

(c) Identification of Judgment Creditors and Judgment Debtors. When identifying judgment creditors and judgment debtors, the party preparing the judgment must include as much of each person's full legal name as is known to that party and each person's date of birth, if known to that party.

(d) Name of Judge. In a proposed judgment, the name of the judge, if known, must be typed under the judge's signature line.

(e) Child Support Orders. This rule does not apply to child support orders. The form of child support orders is governed by Civil Rule 90.3(j).

(f) Rejection for Noncompliance. The clerk may reject proposed judgments that do not comply with this rule and Civil Rule 76.

(Adopted by SCO 1415 effective October 15, 2000; amended by SCO 1699 effective October 15, 2009)


SAMPLE JUDGMENT WITHOUT PUNITIVE DAMAGES
(not to scale)

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT AT ANCHORAGE

BARBARA A. JONES,   )
Plaintiff,          )
vs.                 )
                    )
MARY JANE SMITH and )
FRED R. SMITH,      )              Case No. 3AN-00-1234CI
                    )
Defendants.         )                   FINAL JUDGMENT
____________________)


IT IS ORDERED that judgment is entered as follows:

1.   Plaintiff Barbara Ann Jones, d.o.b. 1/24/57, shall recover from and
     have judgment against defendants Mary Jane Smith, d.o.b.
     1/26/56, and Frederick Ronald Smith, d.o.b. 3/24/56, jointly and
     severally, as follows:

     a.   Principal Amount                       					 $_____
     b.   Prejudgment Interest on $ ____        					 $_____
          (computed at the annual rate of ____% 
          from ____ to date of judgment)
     c.   Sub-Total:                             					 $_____
     d.   Attorney's Fees                        					 $_____
               Date Awarded: ____
               Judge: ____
     e.   Costs                                  					 $_____
               Date Awarded: ____
               Clerk: ____
     f.   TOTAL JUDGMENT:                        					 $_____
     g.   Post-Judgment Interest Rate:           					  _____%


2.        (non-monetary provision)


      ___________    							___________________________     
      Date           							George W. Black
                           					Superior Court Judge

DO NOT USE THIS FORM IF PUNITIVE DAMAGES ARE AWARDED

Judgments longer than one page must have a footer setting out the document title (e.g., "Final Judgment"), case name, case number, and page numbering (page x of y). See Civil Rule 76(a)(5).


SAMPLE JUDGMENT WITH PUNITIVE DAMAGES
(not to scale)

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT AT ANCHORAGE

BARBARA A. JONES,   )
Plaintiff,          )
vs.                 )
                    )
MARY JANE SMITH and )
FRED R. SMITH,      )              Case No. 3AN-00-1234CI
                    )
Defendants.         )                   FINAL JUDGMENT
____________________)


IT IS ORDERED that judgment is entered as follows:

1.   Plaintiff Barbara Ann Jones, d.o.b. 1/24/57, shall recover from and
     have judgment against defendants Mary Jane Smith, d.o.b.
     1/26/56, and Frederick Ronald Smith, d.o.b. 3/24/56, jointly and
     severally, as follows:

     a.   Principal Amount                       					 $_____
     b.   Prejudgment Interest on $ ____         					 $_____
          (computed at the annual rate of ____% 
          from ____ to date of judgment)
     c.	  Punitive Damage Award									 $_____
     d.   Sub-Total:                             					 $_____
     e.   Attorney's Fees                        					 $_____
               Date Awarded: ____
               Judge: ____
     f.   Costs                                   					 $_____
               Date Awarded: ____
               Clerk: ____
     g.   SUB-TOTAL JUDGMENT:                        				 $_____
     h.   Subtract judgment in favor of state from line 3b.		 ($____)
     i.   TOTAL JUDGMENT											 $_____
     j.   Post-Judgment Interest Rate:             				  _____%

2.        (non-monetary provision)

			Punitive Damages to the State of Alaska
    (Rule 78(c) requires the party preparing the proposed judgment to serve notice on
                             the Attorney General in Juneau)
3.  50% of Punitive Damage Award									$_____
	a.  Subtract attorney's fee and/or costs apportioned to state	($____)
    b.  Judgment in favor of the State of Alaska					$_____
    c.  Post-Judgment Interest Rate								 _____%
    
 ___________    								___________________________     
 Date           								George W. Black
                           					Superior Court Judge

Judgments longer than one page must have a footer setting out the document title (e.g., "Final Judgment"), case name, case number, and page numbering (page x of y). See Civil Rule 76(a)(5).

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Rule 59. New Trials--Amendment of Judgments.

(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues in an action in which there has been a trial by jury or in an action tried without a jury, if required in the interest of justice. On a motion for a new trial in an action tried without a jury, the court may take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.

(b) Motion: Time for Serving -- Statement of Grounds. A motion for a new trial shall be served not later than 10 days after the date shown in the clerk's certificate of distribution on the judgment. The motion shall state the grounds upon which the moving party relies and shall refer to the papers on which the motion is to be based.

(c) Time for Serving Affidavits. When a motion for a new trial is based upon affidavits they shall be served with the motion. The opposing party has 10 days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding 20 days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits.

(d) Contents of Affidavit. If a ground of the motion is newly discovered evidence, the motion shall be supported by the affidavit of the party, or of the party's agent or any officer within whose charge or knowledge the facts are, and also by the affidavit of the party's attorney, showing that the evidence was in fact newly discovered and why it could not with reasonable diligence have been produced at the trial. If the newly discovered evidence consists of oral testimony, the motion shall be supported by the affidavit of the witness or witnesses to the effect that the witness or witnesses would give the testimony proposed. If the newly discovered evidence is documentary, the motion shall be supported by the documents themselves or by duly authenticated copies thereof, or if that is impracticable, by satisfactory evidence of their contents.

(e) On Initiative of Court. Not later than 10 days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a motion for a new trial, timely served, for a reason not stated in the motion. In either case, the court shall specify the grounds therefor.

(f) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after the entry of the judgment.

(Adopted by SCO 5 October 9, 1959; amended by SCO 258 effective November 15, 1976; by SCO 554 effective April 4, 1983; and by SCO 1153 effective July 15, 1994)

Note: Chapter 42 § 2 SLA 1999 enacts AS 09.19.200 which governs the remedies available in civil litigation involving conditions in correctional facilities. According to § 3 of the act, the enactment of AS 09.19.200 has the effect of amending Civil Rules 59(f), 60(b), 62, and 65 by altering the remedies available and the procedure to be used in litigation involving correctional facilities.

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Rule 60. Relief From Judgment or Order.

(a) Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal or petition for review to the Supreme Court, such mistakes may be so corrected before the record is filed in the Supreme Court, and thereafter may be so corrected with leave of the Supreme Court. For purposes of this rule, the record includes electronic information maintained about the case.

(b) Mistakes -- Inadvertence -- Excusable Neglect -- Newly Discovered Evidence -- Fraud -- Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise or excusable neglect;

(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or

(6) any other reason justifying relief from the operation of the judgment.

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 or orders as defined in Civil Rule 58.1(c). A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding, or to grant relief to a defendant not personally served, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis and audita querela are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.

(c) Form of Amended or Corrected Judgments. A motion to amend or correct a judgment must be accompanied by a proposed amended or corrected judgment and a separate proposed order. The new judgment must include the word "amended" or "corrected" in the title.

(Adopted by SCO 5 October 9, 1959; amended by SCO 554 effective April 4, 1983; by SCO 1153 effective July 15, 1994; by SCO 1361 effective October 15, 1999; by SCO 1415 effective October 15, 2000; by SCO 1622 effective October 15, 2006; and by SCO 1670 effective July 1, 2009)

This rule is not a substitute for a party filing a timely appeal; nor does it allow relitigation of issues that have been resolved by the judgment. Morris v. Morris, Op. No. 4298, 908 P2d 425 (Alaska 1995).

Note: Chapter 42 § 2 SLA 1999 enacts AS 09.19.200 which governs the remedies available in civil litigation involving conditions in correctional facilities. According to § 3 of the act, the enactment of AS 09.19.200 has the effect of amending Civil Rules 59(f), 60(b), 62, and 65 by altering the remedies available and the procedure to be used in litigation involving correctional facilities.

Note: Chapter 92 SLA 2008 (HB 65) added a new chapter to AS 45 relating to security of personal information, effective July 1, 2009. According to section 6(a) of the Act, AS 45.48.640, enacted by section 4, has the effect of changing Civil Rule 60(b) by allowing a court to vacate an order on its own motion and at any time and by establishing a specific criterion for vacating the order under AS 45.48.640.

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Rule 61. Harmless Error.

No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

(Adopted by SCO 5 October 9, 1959)

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Rule 62. Stay of Proceedings to Enforce a Judgment.

(a) Automatic Stay -- Exceptions. Except as to judgments entered on default or by consent or on confession, and except as stated herein, no execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of 10 days after the date shown in the clerk's certificate of distribution on the judgment. Unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction or in a receivership action shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal. The provisions of subdivision (c) of this rule govern the suspending, modifying, restoring, or granting of an injunction during the pendency of an appeal or proceedings for review.

(b) Stay on Motion for New Trial or for Judgment. In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial or to alter or amend a judgment made pursuant to Rule 59, or of a motion for relief from a judgment or order made pursuant to Rule 60, or of a motion for judgment in accordance with a motion for a directed verdict made pursuant to Rule 50, or of a motion for amendment to the findings or for additional findings made pursuant to Rule 52(b).

(c) Injunction Pending Appeal or Review. When an appeal is taken or review sought from an interlocutory or final judgment or order or decision granting, dissolving or denying an injunction, the court in its discretion may suspend, modify, restore or grant an injunction during the pendency of the appeal or the proceedings for review upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.

(d) Stay Upon Appeal or Proceedings for Review. When an appeal is taken or review sought the appellant or petitioner by giving a supersedeas bond may obtain a stay subject to the exceptions contained in subdivision (a) of this rule. The bond may be given at or after the time of filing the notice of appeal or of filing the petition for review, as the case may be. The stay is effective when the supersedeas bond is approved by the court.

(e) Stay in Favor of the State or Agency Thereof. When an appeal is taken or review sought by the state or an officer or agency thereof, and the operation or enforcement of the judgment, order or decision is stayed, no bond, obligation or other security shall be required from the appellant or the petitioner, as the case may be.

(f) Power of Supreme Court Not Limited. The provisions in this rule do not limit any power of the supreme court or of a justice thereof to stay proceedings during the pendency of an appeal or proceedings for review, or to suspend, modify, restore or grant an injunction during the pendency of an appeal or proceedings for review, or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered.

(g) Stay of Judgment Upon Multiple Claims or Multiple Parties. When a court has ordered a final judgment under the conditions stated in Rule 54(b), the court may stay enforcement of that judgment until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.

(Adopted by SCO 5 October 9, 1959; amended by SCO 30 effective February 1, 1961; by SCO 44 effective February 26, 1962; by SCO 258 effective November 15, 1976; and by SCO 554 effective April 4, 1983)
Note: Chapter 42 § 2 SLA 1999 enacts AS 09.19.200 which governs the remedies available in civil litigation involving conditions in correctional facilities. According to § 3 of the act, the enactment of AS 09.19.200 has the effect of amending Civil Rules 59(f), 60(b), 62, and 65 by altering the remedies available and the procedure to be used in litigation involving correctional facilities.

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Rule 63. Disability of a Judge.

(a) Before Trial. If by reason of death, sickness or other disability, a judge before whom an action is pending is unable to perform the duties to be performed by the court under these rules prior to the beginning of the trial or hearing, then any other judge of the court assigned by the presiding judge of the judicial district where the action is pending or by the chief justice of the supreme court may perform those duties.

(b) During Trial. If by reason of death, sickness or other disability, a judge before whom an action is pending is unable to perform the duties to be performed by the court under these rules after the trial or hearing of the action has commenced, then any other judge of the court, assigned by the presiding judge of the judicial district where the action is pending or by the chief justice of the supreme court, may perform those duties, as if such other judge had been present and presiding from the commencement of such trial or hearing; provided, however, that from the beginning of the taking of testimony at such trial or hearing a stenographic or electronic recording of the proceedings shall have been made so that the judge so continuing may become familiar with the previous proceedings.

(c) After Verdict, etc. If by reason of death, sickness or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge of the court, assigned by the presiding judge of the judicial district where the action has been tried or by the chief justice of the supreme court, may perform those duties; but if that judge is satisfied that that judge cannot perform those duties because the judge did not preside at the trial or for any other reason, that judge may grant a new trial.

(Adopted by SCO 5 October 9, 1959; amended by SCO 1153 effective July 15, 1994)

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PART X. PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS

Rule 64. Seizure of Person or Property.

At the commencement of and during the course of an action, all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by law existing at the time the remedy is sought. The remedies thus available include arrest, attachment, garnishment, replevin, sequestration, and other corresponding or equivalent remedies, however designated and regardless of whether by law the remedy is ancillary to an action or must be obtained by an independent action.

(Adopted by SCO 5 October 9, 1959)

Note: Chapter 45, SLA 2013 (HB 65) enacted various changes, including a new section AS 34.40.113 related to discretionary interests in irrevocable trusts, effective September 9, 2013. According to section 47 of the Act, AS 34.40.113(f), enacted by section 40 of the Act, has the effect of amending Alaska Rule of Civil Procedure 64 by prohibiting a creditor or beneficiary from obtaining an order of attachment or similar relief in certain cases.

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Rule 65. Injunctions.

(a) Preliminary Injunction.

(1) Notice. No preliminary injunction shall be issued without notice to the adverse party.

(2) Consolidation of Hearing With Trial on Merits. Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. This subdivision (a) (2) shall be so construed and applied as to save the parties any rights they may have to trial by jury.

(b) Temporary Restraining Order -- Notice -- Hearing -- Duration. A temporary restraining order may be granted without written or oral notice to the adverse party or that party's attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required. Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if the party does not do so, the court shall dissolve the temporary restraining order. On two days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.

(c) Security. No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the state or a municipality or of an officer or agency thereof, or unless otherwise ordered by the court, in domestic relations actions or proceedings.

A surety upon a bond or undertaking under this rule submits to the jurisdiction of the court and irrevocably appoints the clerk of the court as the surety's agent upon whom any papers affecting the surety's liability on the bond or undertaking may be served. The surety's liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court who shall forthwith mail copies to the persons giving the security if their addresses are known.

(d) Form and Scope of Injunction or Restraining Order. Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

(e) Standing Preliminary Injunctions in Domestic Relations Actions. The presiding judge of each judicial district may issue a standing injunction which restrains the parties in all domestic relations actions, except dissolutions, domestic violence actions and uniform reciprocal enforcement actions, from:

(1) removing any child who is the subject of the action from the State of Alaska without the written consent of the other party;

(2) disposing of, encumbering or transferring any marital property without the written consent of the other party, except reasonably using funds for the parties or the parties' children's personal and necessary expenses; and

(3) threatening, harassing, or harming the other party.

Such a standing injunction shall be effective against a party upon receipt of a copy of the standing injunction by the party or the party's attorney.

(Adopted by SCO 5 October 9, 1959; amended by SCO 30 effective February 1, 1961; by SCO 223 effective January 1, 1976; by SCO 258 effective November 15, 1976; by Section 2, Chapter 82, Session Laws of Alaska 1977 effective September 1, 1977; by SCO 708 effective July 15, 1986; by SCO 1153 effective July 15, 1994; and by SCO 1269 effective July 15, 1997; by SCO 1361 effective October 15, 1999; and by SCO 1620 effective August 16, 2006)

Note: In 1996, the legislature enacted AS 18.66.110 -- 18.66.130 relating to domestic violence protective orders. According to 78 ch. 64 SLA 1996, these statutes have the effect of amending Civil Rule 65 relating to temporary restraining orders, the method of obtaining those orders, and the timing of those orders.

Note: Chapter 42 § 2 SLA 1999 enacts AS 09.19.200 which governs the remedies available in civil litigation involving conditions in correctional facilities. According to § 3 of the act, the enactment of AS 09.19.200 has the effect of amending Civil Rules 59(f), 60(b), 62, and 65 by altering the remedies available and the procedure to be used in litigation involving correctional facilities.

Note: Chapter 87 SLA 03 (HB 1) enacted AS 18.65.850-860, which addresses protective orders for persons who are victims of stalking not involving domestic violence. According to Section 8(b) of the Act, these provisions have the effect of amending Civil Rule 65 relating to temporary restraining orders, the method of obtaining those orders, and the timing of those orders.

Note: Chapter 54 SLA 2005 (HB 95) enacted extensive amendments and new provisions related to public health, including public health emergencies and disasters. According to Section 13(d) of the Act, AS 18.15.375(c)(3), (d), and (e), and 18.15.385(d) – (k), enacted in Section 8, have the effect of amending Civil Rule 65 by allowing temporary and ex parte injunctions to be issued and by expediting the procedures related to injunctive relief in matters involving public health.

Note: Chapter 36 SLA 2006 (SB 54) enacted changes to the protective order statutes for crimes involving stalking to include crimes involving sexual assault and sexual abuse. According to section 12 of the Act, the amendments to AS 18.65.850 and AS 18.65.855 made in sections 4 through 8 of the Act have the effect of changing Civil Rule 65 by changing the method for obtaining, and the timing of, temporary restraining orders.

Cross References

 CROSS REFERENCE: AS 09.40.230

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Rule 65.1. Domestic Violence, Stalking, and Sexual Assault Protective Orders - Access to Information.

A petitioner who is appearing pro se in a proceeding to obtain a domestic violence protective order under AS 18.66.100 or 18.66.110 or a stalking or sexual assault protective order under AS 18.65.850 or 18.65.855 may submit the petitioner's mailing address and telephone number on a separate form and omit this information from other pleadings and papers filed with the court. Access to the form containing the petitioner's mailing address and telephone number is limited to the court, authorized court system personnel, and the petitioner. If a child support order is entered in a domestic violence proceeding, court system personnel may also provide a copy of the address information form to the Child Support Services Division. Further disclosure of this form by the Child Support Services Division is prohibited. If the petitioner submits an information sheet containing the petitioner's address and telephone number for use by law enforcement agencies, the court may retain a copy of this document. Access to the copy is limited to the court, authorized court system personnel, and the petitioner.

(Adopted by SCO 1345 effective August 13, 1998; amended by SCO 1527, effective September 11, 2003; and by SCO 1677effective August 20, 2008)

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Rule 66. Receivers.

An action wherein a receiver has been appointed shall not be dismissed except by order of the court. The practice in the administration of estates by receivers or by the other similar officers appointed by the court shall be in accordance with the practice set forth by statute. In all other respects the action in which the appointment of a receiver is sought or which is brought by or against a receiver is governed by law and these rules.

(Adopted by SCO 5 October 9, 1959)

Cross References

CROSS REFERENCE: AS 09.40.240; AS 09.40.250

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Rule 67. Deposit in Court.

Upon notice to every other party and upon leave of court, a party may deposit with the court all or any part of any sum of money or any other thing capable of physical delivery which is the subject of the action or due under a judgment. Money deposited with the court under this rule shall be managed in accordance with the provisions of Rule 5, Rules Governing the Administration of All Courts. The court shall release the deposit to the party entitled to it when that party becomes entitled to it. No interest shall accrue against a party making a deposit, to the extent of that deposit, after it is made.

(Adopted by SCO 5 October 9, 1959; amended by SCO 251 effective July 1, 1976; by SCO 465 effective June 1, 1981; by SCO 474 effective July 1, 1981; by SCO 1085 effective January 15, 1992; by SCO 1093 effective July 15, 1992; and by SCO 1192 effective July 15, 1995)

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Rule 68. [Applicable to cases filed before August 7, 1997.] Offer of Judgment.

(a) At any time more than 10 days before the trial begins, either the party making a claim or the party defending against a claim may serve upon the adverse party an offer to allow judgment to be entered in complete satisfaction of the claim for the money or property or to the effect specified in the offer, with costs then accrued. The offer may not be revoked in the 10 day period following service of the offer. If within 10 days after service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service, and the clerk shall enter judgment. An offer not accepted within 10 days in considered withdrawn and evidence of the offer is not admissible except in a proceeding to determine costs. The fact that an offer is made but not accepted does not preclude a subsequent offer.

(b) If the judgment finally rendered by the court is not more favorable to the offeree than the offer, the prejudgment interest accrued up to the date judgment is entered shall be adjusted as follows:

(1) if the offeree is the party making the claim, the interest rate will be reduced by the amount specified in AS 09.30.065 and the offeree must pay the costs and attorney's fees incurred after the making of the offer (as would be calculated under Civil Rules 79 and 82 if the offeror were the prevailing party). The offeree may not be awarded costs or attorney's fees incurred after the making of the offer.

(2) if the offeree is the party defending against the claim, the interest rate will be increased by the amount specified in AS 09.30.065.

(c) When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability.

Rule 68. [Applicable to cases filed on or after August 7, 1997.] Offer of Judgment.

(a) At any time more than 10 days before the trial begins, either the party making a claim or the party defending against a claim may serve upon the adverse party an offer to allow judgment to be entered in complete satisfaction of the claim for the money or property or to the effect specified in the offer, with costs then accrued. The offer may not be revoked in the 10 day period following service of the offer. If within 10 days after service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service, and the clerk shall enter judgment. An offer not accepted within 10 days is considered withdrawn, and evidence of the offer is not admissible except in a proceeding to determine costs. The fact that an offer is made but not accepted does not preclude a subsequent offer.

(b) If the judgment finally rendered by the court is at least 5 percent less favorable to the offeree than the offer, or, if there are multiple defendants, at least 10 percent less favorable to the offeree than the offer, the offeree, whether the party making the claim or defending against the claim, shall pay all costs as allowed under the Civil Rules and shall pay reasonable actual attorney's fees incurred by the offeror from the date the offer was made as follows:

(1) if the offer was served no later than 60 days after the date established in the pretrial order for initial disclosures required by Civil Rule 26, the offeree shall pay 75 percent of the offeror's reasonable actual attorney's fees;

(2) if the offer was served more than 60 days after the date established in the pretrial order for initial disclosures required by Civil Rule 26 but more than 90 days before the trial began, the offeree shall pay 50 percent of the offeror's reasonable actual attorney's fees;

(3) if the offer was served 90 days or less but more than 10 days before the trial began, the offeree shall pay 30 percent of the offeror's reasonable actual attorney's fees.

(c) If an offeror would be entitled to receive costs and reasonable actual attorney's fees under paragraph (b), that offeror shall be considered the prevailing party for purposes of an award of attorney's fees under Civil Rule 82. Notwithstanding paragraph (b), if the amount awarded an offeror for attorney's fees under Civil Rule 82 is greater than a party would receive under paragraph (b), the offeree shall pay to the offeror attorney's fees specified under Civil Rule 82 and is not required to pay reasonable actual attorney's fees under paragraph (b). A party who receives attorney's fees under this rule may not also receive attorney's fees under Civil Rule 82.

(Adopted by SCO 5 October 9, 1959; amended by SCO 818 effective August 1, 1987; by SCO 1281 effective August 7, 1997; and by SCO 1565 effective April 15, 2005)

Note to SCO 1281: In 1997 the legislature amended AS 09.30.065 concerning offers of judgment. According to ch. 26, § 52, SLA 1997, the amendment to AS 09.30.065 has the effect of amending Civil Rules 68 and 82 by requiring the offeree to pay costs and reasonable actual attorney fees on a sliding scale of percentages in certain cases, by eliminating provisions relating to interest, and by changing provisions relating to attorney fee awards. According to § 55 of the session law, the amendment to AS 09.30.065 applies "to all causes of action accruing on or after the effective date of this Act." However, the amendments to Civil Rule 68 adopted by paragraph 5 of this order are applicable to all cases filed on or after August 7, 1997. See paragraph 17 of this order.

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Rule 69. Execution--Examination of Judgment Debtor--Restraining Disposition of Property-- Execution After Five Years.

(a) Execution -- Discovery. Process to enforce a judgment shall be by a writ of execution, unless the court directs otherwise. The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with these rules and applicable statutes. In aid of the judgment or execution, the judgment creditor or a successor in interest, when that interest appears of record, may obtain discovery from any person, including the judgment debtor, in the manner provided in these rules.

(b) Examination of Judgment Debtor in Court.

(1) Before or after the issuing of an execution against property, the judgment debtor may be made to appear before the court, or before a master appointed by such court, at a time and place specified by an order, and to answer under oath all questions concerning property the judgment debtor has which may be subject to execution. The court may also order the debtor to bring to the examination documents concerning property that may be subject to execution.

(2) The examination may be reduced to writing and filed with the clerk by whom the execution was issued. Either party may examine witnesses in that party's behalf. If by such examination it appears that the judgment debtor has any property liable to execution the court shall make an order requiring the judgment debtor to apply the same in satisfaction of the judgment, or that such property be levied on by execution, or both, as may seem most likely to effect the object of the proceeding.

(c) Order Restraining Disposition of Property. At the time of allowing the order prescribed in subsection (b)(1) of this rule or at any time thereafter pending the proceeding, the court may make an order restraining the judgment debtor from selling, transferring, or in any manner disposing of any property liable to execution pending the proceeding. For disobeying any order or requirement authorized by this rule the judgment debtor may be punished as for a contempt.

(d) Execution After Five Years. Whenever any period of five years shall elapse without a writ of execution being outstanding on a judgment, no writ of execution may be issued unless the court finds that there are just and sufficient reasons for the judgment creditor’s failure to obtain a writ within that five-year period. The procedure shall be as follows:

(1) The judgment creditor shall file a motion supported by affidavit with the court where the judgment is entered for leave to issue an execution. The motion and affidavit shall state the names of the parties to the judgment, the date of its entry, the reasons for failure to obtain a writ for a period of five years and the amount claimed to be due thereon or the particular property of which possession was adjudged to the judgment creditor remaining undelivered.

(2) Upon filing such motion and affidavit the judgment creditor shall cause a summons to be served on the judgment debtor in accordance with the provisions of Rule 4. The summons shall state the amount claimed or the property sought to be recovered under the judgment.

(3) The judgment debtor may file and serve a response to such motion within 20 days, alleging any defense to such motion that may exist. The judgment creditor may file and serve a reply to such response. The judgment debtor waives all defenses and objections that the judgment debtor does not present in the response as herein provided.

(4) The order shall specify the amount for which execution is to issue, or the particular property possession of which is to be delivered.

(5) At the time of filing the motion for leave to issue execution or at any time thereafter before the final order is entered, the judgment creditor may cause the property of the judgment debtor to be attached and held during the time said motion is pending and until the final order is entered. Such attachment shall be made in accordance with these rules and applicable statutes, and for the purpose of such attachment the judgment shall be deemed an implied contract for the direct payment of money. In the event that the court shall order that execution be issued, it shall further order that any property of the judgment debtor attached hereunder shall be sold for the satisfaction of such execution and the peace officer shall apply the property attached by the peace officer or the proceeds thereof upon the execution.

(e) Multiple Executions.

(1) Only one original general writ of execution and one original writ of execution for garnishment of earnings may be issued and outstanding at any one time except:

(A) an additional writ of execution may be issued while another is outstanding if either of the writs is to be served on the Department of Revenue to seize the debtor's Alaska Permanent Fund Dividend; only one writ can be levied against a debtor’s Permanent Fund Dividend for each debt; or

(B) additional writs may be issued if the creditor alleges facts by affidavit that show (1) there is property which cannot be served by the process server holding an outstanding writ because the property is outside the community in which the process server is authorized to operate, and (2) there is good cause to believe the debtor may remove or dispose of the property unless immediate action is taken.

(2) A process server to whom a writ of execution is issued may make copies of the writ as necessary. However, no writ or copies may be transferred to another process server except within the same firm. If the creditor discovers property that could be seized under the writ in another community in which the original process server does not serve, the outstanding writ must be returned to the court so that the clerk of court can cancel the first writ and issue a new writ to a process server serving the other community.

(f) Service of Writ of Execution and Other Paper.

(1) Service – By Whom. The clerk shall deliver the writ of execution and process server instructions to a peace officer or to a licensed civilian process server specially appointed by the Commissioner of Public Safety for that purpose under Civil Rule 4(c)(3), except that the clerk may serve writs of execution on the Alaska Permanent Fund Dividend by certified mail. Postal delivery receipts for writs of execution served on the Permanent Fund Division of the Department of Revenue shall be made returnable to the judgment creditor.

(2) Delivery of Money to the Court. A process server who receives money as a result of a levy must deliver the money and a return of service to the court on the next day of business after receipt. The process server must file the original writ unless the money received by the server will satisfy only part of the judgment and the server expects to seize more money or property with the writ. In this situation, the process server may make a partial return by delivery to the court of all money received and a return of service that identifies the date and the amount of the writ. The original writ must be returned to the court when the judgment has been satisfied, when the process server no longer expects to seize more money or property with the writ, or within 30 days after receiving a notice of termination of the writ from the court.

(3) Return of Service of the Writ.

(A) The return of service must be in writing and must state who was served, the date of service, the amount of money or the property received, and the date the process server received the money or property.

(B) The return of service must also list each fee the process server is charging, and the subdivision of Administrative Rule 11 that allows that fee. If the amount charged exceeds the base amount recoverable under Rule 11, the return must also provide justification for the excess amount.

(C) If the writ is served by a licensed civilian process server, the return of service must be by affidavit. If the writ is served by a peace officer, the return of service may be by certificate.

(g) Service of Notice on Judgment Debtor.

(1) Service Methods. The judgment creditor must serve on the judgment debtor the documents that AS 09.38.065(c), AS 09.38.075(b), AS 09.38.080(c), and AS 09.38.085 require to be served on the judgment debtor. If service is being made under AS 09.38.080, the documents must be served on the debtor before, at the time of, or within three days after levy. The judgment creditor may serve the documents by certified mail as provided in Civil Rule 4(h), or by licensed civilian process server; if no licensed civilian process server is available, then service may be made by a peace officer.

(2) Forms. The judgment creditor must use forms authorized by the administrative director for the papers required to be served on the judgment debtor, including the creditor’s affidavit, the notices, the claim of exemption form, and the judgment debtor booklet.

(3) Who May Sign Affidavit. A creditor’s affidavit filed on behalf of a corporation may be signed by any officer or employee authorized in writing to sign on that corporation’s behalf, AS 22.20.040 notwithstanding.

(4) Number of Notices Required if Multiple Seizures. A creditor is not required to serve any additional notice and accompanying documents on the debtor for a subsequent levy if the creditor’s affidavit previously served on the debtor describes the property seized by the subsequent levy and a notice was served on the debtor within the past 45 days.

(5) Proof of Service on Debtor.

(A) Proof of Service. Within 30 days after the court receives money seized by writ of execution, the creditor must file proof of service of the notice to debtor described in paragraph (g)(1).

(i) Certified Mail. If service is by certified mail, the proof of service must be an affidavit stating that service was by certified mail. The affidavit must list the documents served, the person to whom the documents were mailed, and the date of mailing. The postal delivery receipt card must be attached to the affidavit.

(ii) Personal Service. If service is by a licensed civilian process server or by peace officer, the proof of service must list the documents served, the person with whom the documents were left, the date and time of service, the place of service, and the method of service. If service is made by a licensed civilian process server, the proof of service must be by affidavit. If service is made by a peace officer, the proof of service may be by certificate.

(B) Diligent Inquiry. If the creditor is unable to serve the notice, the creditor may file a request for release of funds and an affidavit of diligent inquiry explaining the efforts the creditor has made to effect service. The efforts must include service by certified mail and a mailing by first-class mail to the debtor’s last known address. The affidavit must describe the efforts made to locate the debtor. Seized funds may be released to the creditor if the court is satisfied that the creditor has made diligent inquiry into the whereabouts of the debtor and has made sufficient efforts to give the debtor actual notice of the debtor’s rights.

(C) Return of Seized Funds to Debtor. If, within 30 days after the court receives money seized by writ of execution, the creditor neither files proof of service as required by subparagraph (A) above nor requests a release of funds under subparagraph (B), the court may release all monies seized to the debtor without further order of the court or notice to the creditor. If money is released to the debtor under this paragraph, the cost of service of the writ of execution shall not be assessed against the debtor.

(h) Confirmation of Sale of Real Property on Execution -- Objections -- Disposition of Proceeds.

(1) Confirmation. Where real property has been sold on execution the plaintiff in the writ of execution, on motion, is entitled to have an order confirming the sale, after the expiration of 10 days after the filing of the return of sale, unless the judgment debtor has filed objections to the sale within 10 days after the filing of the return of sale.

(2) Objections. If objections are filed the court shall determine at a hearing whether there were substantial irregularities in the proceedings of sale which caused probable loss or injury to the judgment debtor. If not, the order confirming the sale shall be granted. If so, the court shall deny the motion and direct that the property be resold, in whole or in part as upon an execution received of that date.

(3) Disposition of Proceeds of Sale. After entry of an order confirming the sale of real property, the clerk shall apply the proceeds of the sale, or so much thereof as may be necessary, in satisfaction of the judgment and costs. Any proceeds remaining shall be paid to the judgment debtor. Such payments shall be made prior to the entry of the order of confirmation if the judgment debtor files with the clerk a waiver of all objections made or to be made to the proceedings concerning the sale.

(i) Execution on Alaska Permanent Fund Dividends.

(1) When an Alaska Permanent Fund Dividend is levied upon to satisfy a judgment, the Department of Revenue may deliver the seized funds directly to the court instead of turning them over to the process server who served the writ. The Department of Revenue will notify the process server of the amount seized. Based on this information, the process server shall prepare and file a return of service. The court shall disburse the funds as provided by law.

(2) The administrative director may adopt procedures for executing upon Alaska Permanent Fund dividends by electronic means to satisfy judgments in criminal and minor offense cases and judgments in other cases in favor of the state. The procedures shall be established by administrative bulletin and may include procedures for issuance of writs of execution in electronic format, service of writs and notices of levy by electronic means, return of service, deposit of funds seized and other execution procedures.

(3) The automatic stays listed in District Court Civil Rule 20(a), District Court Civil Rule 24(a), and Civil Rule 62(a) do not apply to writs issued to government agencies for execution on the Alaska Permanent Fund Dividend under (i)(2) of this rule.

(Adopted by SCO 5 October 9, 1959; amended by SCO 56 effective November 1, 1963; by SCO 258 effective November 15, 1976; by SCO 465 effective June 1, 1981; by SCO 675 effective June 15, 1986; by SCO 721 effective December 15, 1986; by SCO 1094 effective January 15, 1993 by SCO 1125 effective July 15, 1993; and by SCO 1135 effective July 15, 1993; by SCO 1138 effective July 15, 1994; by SCO 1153 effective July 15, 1994; by SCO 1290 effective October 1, 1997; by SCO 1692 effective October 15, 2009; and by SCO 1731 effective August 1, 2010)

NOTE to Civil Rule 69(i): See Administrative Bulletin 43 Adobe Acrobat PDF logo

Cross References

CROSS REFERENCE: AS 09.30.030; AS 09.35.010 -- AS 09.35.330

(a) CROSS REFERENCE: AS 09.35.010

(b)(1) CROSS REFERENCE: AS 09.35.070 -- AS 09.38

(d)(1) CROSS REFERENCE: AS 09.35.020

(d)(2) CROSS REFERENCE: AS 09.35.060

(e)(1) CROSS REFERENCE: AS 09.35.180

(e)(2) CROSS REFERENCE: AS 09.35.180

(h) CROSS REFERENCE: AS 09.35.180

(i) CROSS REFERENCE: AS 43.23.065

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Rule 70. Judgment for Specific Acts--Vesting Title.

If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done has like effect as if done by the party. On application of the party entitled to performance, the clerk shall issue a writ of attachment or sequestration against the property of the disobedient party to compel obedience to the judgment. The court may also in proper cases adjudge the party in contempt. If real or personal property is within the state, the court in lieu of directing a conveyance thereof may enter a judgment divesting the title of any party and vesting it in others and such judgment has the effect of a conveyance executed in due form of law. When any order or judgment is for the delivery of possession, the party in whose favor it is entered is entitled to a writ of execution or assistance upon application to the clerk.

(Adopted by SCO 5 October 9, 1959)

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Rule 71. Process in Behalf of and Against Persons Not Parties.

When an order is made in favor of a person who is not a party to the action, the person may enforce obedience to the order by the same process as a party; and, when obedience to an order may be lawfully enforced against a person who is not a party, that person is liable to the same process for enforcing obedience to the order as a party.

(Adopted by SCO 5 October 9, 1959; amended by SCO 1153 effective July 15, 1994)

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Rule 72. Eminent Domain.

(a) Applicability of Other Rules. The procedure for the condemnation of property under the power of eminent domain is governed by the Civil Rules, except as otherwise provided in this rule.

(b) Joinder of Properties. The plaintiff may join in the same action one or more separate pieces of property, whether in the same or different ownership and whether or not sought for the same use. Severance shall be freely granted in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy.

(c) Commencement of Action.

(1) Complaint. An action for the condemnation of property under the power of eminent domain is commenced by filing a complaint and, if used, a declaration of taking. The complaint, in order to be accepted for filing, must be accompanied by a completed case description on a form provided by the clerk of court.

(2) Contents of Complaint. (A) The complaint must contain:

(i) a caption naming as defendants the persons described in subsection (c)(2)(A)(vii), commencing with the apparent owners of the fee simple interest in the property to be taken, and the property designated generally by kind, quantity, and location;

(ii) a statement of the authority and necessity for the taking;

(iii) a statement of the use for which the property is to be taken;

(iv) a description of the property to be taken sufficient to identify and locate it;

(v) a statement of the interests to be acquired, including the terms and conditions of any easements;

(vi) a statement of the amount of money the plaintiff estimates to be just compensation for the taking;

(vii) the name and apparent interest of all persons having or claiming an interest in the property who can be ascertained by a reasonably diligent search of the records or otherwise known to the plaintiff to claim an interest in the property.

(B) The statement of just compensation required under subsection (c)(2)(A)(vi) constitutes a judicial admission by the plaintiff. The names and apparent interests required under subsection (c)(2)(A)(vii) do not constitute admissions by the plaintiff.

(3) Exhibits to Complaint. The decisional document for the taking and a map or plat of the property to be taken must be attached as exhibits to the complaint.

(d) Process.

(1) Summons. Upon filing of the complaint, the clerk shall forthwith issue a summons in condemnation and deliver it to the plaintiff, who shall cause the summons and a copy of the complaint to be served in accordance with Civil Rule 4. Upon request of the plaintiff, separate or additional summonses shall issue against any defendants.

(2) Contents of Summons. (A) A summons in condemnation must state:

(i) the court where the action was filed;

(ii) the caption of the action;

(iii) the name of the defendant to whom the summons is directed;

(iv) the name, address and telephone number of plaintiff's counsel; and

(v) the name of the judge to whom the case is assigned.

(B) The summons must also state:

(i) that if the defendant disputes the authority and necessity for the taking or objects to the declaration of taking, the defendant must file within twenty days after service of the summons upon the defendant an answer stating all of the defendant's objections and defenses;

(ii) that failure to file an answer within such time constitutes a waiver by the defendant of all objections and defenses to the authority and necessity for the taking and to the validity of the declaration of taking;

(iii) that if the action is not dismissed, the time when plaintiff may take possession, the amount of compensation to be paid for the taking, and the distribution of compensation will be determined by further proceedings in the action;

(iv) that if the defendant disputes the amount of just compensation, or claims any part of the compensation to be paid in the action, or desires notice of further proceedings in the action, the defendant must file within twenty days after service of the summons upon the defendant a notice of appearance, stating the name and address of the person to whom notice should be sent, or the court will proceed to a final determination of just compensation without further notice to the defendant; and

(v) that a defendant who fails to appear within the time specified may file a notice of appearance at any time before a final determination of just compensation is made and may present evidence as to the amount of just compensation to be paid or its distribution; however, the filing of an untimely notice of appearance, absent a showing of good cause that would justify setting aside a default under Civil Rule 55(e), does not relieve a defendant of the effect of prior orders entered by the court or a final determination of just compensation;

(vi) that ten days following a final determination of just compensation the court will enter judgment by default for the relief demanded in the complaint against any defendant who has failed to appear.

(3) Service. The summons, a copy of the complaint and, if used, a copy of the declaration of taking must be served on the defendants and return of service made in conformity with Civil Rule 4.

(e) Answer or Appearance.

(1) Answer. If the defendant objects to the authority and necessity for the taking or to the validity of the declaration of taking, the defendant must file an answer stating all of the defendant's objections and defenses. The answer must be filed within twenty days after service of the summons upon the defendant.

(2) Notice of Appearance. If the defendant disputes the amount of just compensation, or claims any part of the compensation to be paid in the action, or desires to receive notice of further proceedings in the action, the defendant must file a notice of appearance, stating the name and address of the person to whom notice should be sent. The notice of appearance must be filed within twenty days after service of the summons upon the defendant. A notice of appearance preserves all claims concerning the amount of compensation to be paid and its distribution. A notice of appearance may be filed with an answer.

(3) Disclaimer. If a defendant has no objection to the taking or to loss of possession of the property, or no claim to any part of the compensation deposited or to be paid in the action, the defendant may file a disclaimer of interest in the proceedings. A disclaimer may be filed after an answer or appearance. The parties and the court are not required to provide notice of proceedings to a defendant who has filed a disclaimer.

(4) Failure to Respond. Failure to file an answer within the time specified in subparagraph (e)(1) constitutes a waiver by the defendant of all objections and defenses to the authority and necessity for the taking and to the validity of the declaration of taking. The filing of an untimely notice of appearance, absent a showing of good cause that would justify setting aside a default under Civil Rule 55(e), does not relieve a defendant of the effect of prior orders entered by the court or a final determination of just compensation. Ten days following a final determination of just compensation, the court upon motion, may enter judgment by default for the relief demanded in the complaint against a defendant who has not filed a notice of appearance.

(5) Other Pleadings or Motions. All objections and defenses to the taking must be set forth in the answer. No counterclaims, cross-claims, or third party claims are allowed, unless the court determines that such claims should be consolidated with the condemnation action under Civil Rule 42(a).

(f) Amendment of Pleadings. The plaintiff may amend the complaint without leave of court at any time before trial of the issue of compensation and as many times as desired; however, no amendment may be made which would result in a dismissal prohibited under paragraph (i) of this rule. Service of the amended complaint upon a party who has appeared must be made as provided in Civil Rule 5(b). Service upon a party who has not appeared must be made as provided in paragraph (d) of this rule. A defendant who is served with an amended complaint may file and serve a response within the time allowed by paragraph (e) of this rule.

(g) Substitution of Parties. If a defendant dies or becomes incompetent or transfers its interest in the litigation, the court shall order substitution of the proper party upon motion. The provisions of Civil Rule 25(a) do not apply to actions proceeding under this rule. Service of the motion upon a person not already a party to the action must be made as provided in Civil Rule 4.

(h) Hearing and Trial.

(1) Special Discovery Rules.

(A) Expedited Discovery on Authority, Necessity and Possession. Any time after service of the summons, any party may conduct discovery, including depositions, regarding matters to be decided at the hearing provided for under subparagraph (h)(2). Responses to interrogatories, requests for production or inspection, and requests for admissions must be served within fifteen days after service of the interrogatories or requests; however, a defendant need not respond earlier than ten days after the time allowed for filing an answer.

(B) Appraisals and Expert Reports. Each party, within forty-five days after filing its complaint, answer, or appearance, must exchange with every other party who has answered or appeared all appraisals of property within the scope of the taking completed within the five years preceding the date of taking. Forty-five days before the master's hearing and again thirty days before the close of discovery, the parties must simultaneously exchange all appraisals of the property and expert reports relating to just compensation completed since the summons was issued.

(2) Authority/Necessity/Possession.

(A) Declaration of Taking. If no objection to authority and necessity for the taking is contained within the answer, filed within the time period provided by subparagraph (e)(1) of this rule, the court shall enter an order confirming authority and necessity. If timely objection is made, the objecting party must, within thirty days after service of the summons, file a motion to dismiss setting forth the objections with specificity. The plaintiff may file an opposition to the motion within ten days after service of the motion upon the plaintiff. The objecting party may file a reply within three days after service of the opposition upon the objecting party. Either party may request a hearing. The court shall hold a hearing within twenty days after a request for hearing is filed. The hearing will be based on the record unless a request for evidentiary hearing and statement of genuine issues of material fact is filed by the objecting party with the motion or by the plaintiff with the opposition and the court determines that there are genuine issues of material fact. In the event the objections are found to be valid, the court may dismiss the action, remand to the condemning entity for further findings, or order such other relief as allowed by law.

(B) Motions for Possession under AS 09.55.390 and .400. Upon the filing of a motion pursuant to AS 09.55.390 or 09.55.400, the court shall schedule and conduct a hearing on the motion. The motion, any opposition to the motion, and any reply by the moving party must be in the form and filed within the time limits prescribed by Civil Rule 77 for dispositive motions, except that no opposition shall be due earlier than thirty days after service of the summons upon that defendant.

(C) Other Condemnation Actions. In an action in which neither a declaration of taking nor the procedures set forth in AS 09.55.390-.400 have been utilized, a party may move, no earlier than sixty days after service of the summons upon all defendants, for an order determining whether there is authority and necessity for the taking. The motion, any opposition to the motion, and any reply by the moving party must be in the form and filed within the time limits prescribed by Civil Rule 77 for dispositive motions.

(D) Possession. In an action in which a declaration of taking has been filed, a party may move, either contemporaneously with proceedings on authority and necessity or after authority and necessity has been determined, for an order setting the date and terms under which possession of the property will vest in the plaintiff. In an action subject to AS 09.55.380, any party may move to have the questions of possession decided after a final determination of compensation is made or after the plaintiff has deposited sufficient funds or security to satisfy the court that the parties are protected.

(E) Finality. An order entered under section (h)(2)(A), (B), or (C) is a final judgment for purposes of appeal under Appellate Rule 202.

(3) Master's Hearing.

(A) Procedure. A master will be appointed to hear evidence and to ascertain the amount to be paid by the plaintiff to each owner or other person interested in the property, unless the master's hearing is waived under section (h)(3)(B) of this rule. Any interested party may move the court for an order appointing the master. The motion must set forth the name, address and phone number of any individual proposed as master, proposed instructions to the master, a written oath, and a form of report for use by the master. The form of report must incorporate a cover sheet in a form prescribed by the Administrative Director of the Courts. The court may appoint a master from the nominees of the parties or of its own nomination, subject to the provisions of Civil Rule 42(c). The order of reference to the master must set forth the master's duties and powers and must be accompanied by instructions on the law that the master must apply. Civil Rule 53 does not apply to master's proceedings under this rule.

(B) Waiver. If all parties agree, the master's hearing may be waived and the matter set for trial. In that event, A Notice of Waiver of Master's Hearing shall be filed, along with proof of service under Civil Rule 5 upon all parties to the action.

(4) Filing of Master's Report. The master shall file the master's report with the cover sheet prescribed by the Administrative Director of the Courts. The clerk of court shall promptly serve the report on all parties who have answered or appeared.

(5) Appeal From Master's Report. (A) Appeal in the form of a trial de novo may be taken from the master's report by filing a memorandum to set trial within the following time limits:

(i) the plaintiff may appeal within ten days after service of the master's report; and

(ii) a defendant may appeal within fifteen days after service of the master's report.

(B) The memorandum to set trial must contain the information required by Rule 40(b)(1)(a)--(d), (f), and (g).

(6) Demand for Jury Trial. (A) If all parties to the action have waived appointment of a master under subparagraph (h)(3), a jury trial may be had if demand is made by any party within twenty days after service of the Notice of Waiver of Master's Hearing upon that party. Otherwise, trial will be by the court.

(B) Upon filing of an appeal under subparagraph (h)(5), a jury trial may be had if demand is made by any party within twenty days after filing of the appeal from the master's report. Otherwise, trial will be by the court.

(i) Dismissal of Action.

(1) As of Right. If no hearing has commenced to determine the compensation to be paid for the property and the plaintiff has not acquired title or a lesser interest in or taken possession of the property, the plaintiff may dismiss the action as to that property, without an order of the court, by filing a notice of dismissal describing the property as to which the action is dismissed.

(2) By Stipulation. Before entry of judgment vesting the plaintiff with title or a lesser interest in or possession of the property, the action may be dismissed in whole or in part, without an order of the court, as to any property by stipulation of the plaintiff and the defendant affected thereby; and, if the parties so stipulate, the court may vacate any judgment that has been entered.

(3) By Order of the Court. Any time before compensation for property has been determined and paid, the court may dismiss the action as to that property after motion and hearing, except that the court may not dismiss the action as to any part of the property of which the plaintiff has taken possession or in which the plaintiff has taken title or a lesser interest, but shall award just compensation for the possession, title or lesser interest taken. The court may dismiss at any time a defendant unnecessarily or improperly joined.

(4) Want of Prosecution. The court shall not enter an order dismissing a case for want of prosecution. On its own motion or upon motion of a party, the court may schedule a pretrial conference to expedite resolution of a case.

(5) Effect. A dismissal under this paragraph is without prejudice except as otherwise provided in the notice, stipulation, or order.

(j) Deposit and Its Distribution. The plaintiff shall deposit with the court any money required by law as a condition to the exercise of the power of eminent domain, and may make such deposit even when not required to do so by law. The notice of deposit must disclose the extent to which the deposit represents principal, interest, costs and fees, if any. The court and attorneys shall expedite the proceedings for distribution of the deposit and for ascertainment and payment of just compensation. The court may order distribution of the deposit at any time. Such order is effective only as to parties whose time to appear has expired. Upon entry of an order distributing funds on deposit, the clerk of court shall disburse the funds expeditiously. If the compensation finally awarded to a defendant exceeds the amount that has been paid to the defendant on distribution of the deposit, the court shall enter judgment against the plaintiff and in favor of the defendant for the deficiency. If the compensation finally awarded to a defendant is less than the amount that has been paid to the defendant, the court shall enter judgment against the defendant and in favor of the plaintiff for the overpayment.

(k) Costs. Costs and attorney's fees incurred by a defendant must be assessed against the plaintiff if:

(1) the taking of the property is denied;

(2) the plaintiff appeals from the master's award and the defendant does not appeal;

(3) the award of the court was at least ten (10) percent larger than the amount deposited by the condemning authority or the allowance of the master from which an appeal was taken by the defendant;

(4) the action was dismissed under the provisions of paragraph (i) of this rule; or

(5) allowance of costs and attorney's fees appears necessary to achieve a just and adequate compensation of the defendant.

Attorney's fees allowed under this paragraph must be commensurate with the time expended by the attorney throughout the proceedings.

(l) Offer of Judgment. A party may make an offer of judgment to another party under the provisions of Civil Rule 68, which shall apply to eminent domain actions in all respects except as set forth below.

(1) If the plaintiff makes a successful offer of judgment against a defendant, the defendant may not recover costs and fees incurred after the making of the offer of judgment except as reasonable and necessary to evaluate the offer of judgment. This shall not preclude the award of costs and fees as allowed under Civil Rule 72(k)(1)-(5) incurred prior to the making of the offer of judgment. In no event shall a defendant be required to pay the costs and fees of the plaintiff.

(2) If a defendant makes a successful offer of judgment against the plaintiff, the defendant is entitled to recover full reasonable and necessary costs and attorney's fees without regard to Civil Rule 72(k).

(3) For purposes of applying Civil Rule 68, the defendant is the party making the claim and the plaintiff is the party defending against the claim. Any adjustment in interest rates shall operate only from the date the offer of judgment was made. When two defendants use Civil Rule 68 as against the other, the adjustment in prejudgment interest provisions do not apply.

(m) Definitions. For purposes of this rule, a final determination of just compensation is not made until all issues of the amount of just compensation to be paid and its distribution to the parties entitled to just compensation are resolved by the entry of judgment on a jury verdict, the court's confirmation of an award of the master, a final order of the court accepting a settlement agreement of the parties, or the last such order or judgment that resolves any part of these issues.

(Adopted by SCO 5 October 9, 1959; amended by SCO 49 effective January 1, 1963; by SCO 56 effective November 1, 1963; by SCO 57 effective November 8, 1963; by SCO 90 effective July 24, 1967; by SCO 98 effective September 16, 1968; by SCO 414 effective August 1, 1980; by SCO 468 effective June 1, 1981; and by SCO 1153 effective July 15, 1994; rescinded and reenacted by SCO 1216 effective January 1, 1996)

Note to (c)(3): For an explanation of the decisional document requirement in cases under AS 09.55.420-.460, see Ship Creek Hydraulic Syndicate v. State, 685 P.2d 715, 715-20 (Alaska 1984).

Note to (l)(1): The limitation on a defendant's right to recover costs and fees incurred after the making of an offer of judgment is subject to any constitutional right the defendant may have to receive compensation for these expenses.

Note: Chapter 54 SLA 2005 (HB 95) enacted extensive amendments and new provisions related to public health, including public health emergencies and disasters. According to Section 13(e) of the Act, AS 18.15.390, enacted in Section 8, has the effect of amending Civil Rule 72 by authorizing the Department of Health and Social Services to take immediate control over certain businesses and property in cases of public health disasters.

Cross References

CROSS REFERENCE: AS 09.55.240 -- AS 09.55.460

(c) CROSS REFERENCE: AS 09.55.240 -- AS 09.55.270

(e) (3) CROSS REFERENCE: AS 09.55.420 -- AS 09.55.460

(e) (4) CROSS REFERENCE: AS 09.55.310

(h) (4) CROSS REFERENCE: AS 09.55.310

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Rule 72.1. Expert Advisory Panels in Health Care Provider Malpractice Actions.

(a) Identification of Action. Either party in a health care malpractice action subject to AS 09.55.536 may request that the court appoint an expert advisory panel to evaluate the claim. The request should identify the specialty of the health care provider named as defendant. Either party may recommend that the court appoint specific professions or specialties to the expert advisory panel.

(b) Appointment of Panel.

(1) After the case is at issue and a party has requested the appointment of an expert advisory panel (or the court has raised the issue), the court shall nominate a three person panel and notify the parties of the names, professions and specialties of the persons so nominated. The court may initially nominate alternate panel members if it believes nominees may be disqualified. Within 10 days after service of this notice, either party may move to disqualify a nominee, citing the reasons for the motion. The other party may submit an opposition within five days after service of the motion for disqualification. No reply may be filed.

(2) The nominated panel members must inform the court within 10 days of the notice of appointment of any financial relationship with a party or party's attorney, of any other reason which would cause the nominee to be biased in the case or present an appearance of bias, and of any other reason why the nominee cannot serve on the panel. The court shall disqualify a nominee if the nominee is biased for or against a party or if a conflict of interest raises a substantial appearance of bias.

(3) If additional nominees are required, the parties must be given the opportunity to recommend nominees' professions or specialties and move to disqualify as provided above.

(c) Submission of Medical Records.

(1) Within 30 days after service of the court's initial panel nominations, the plaintiff and each health care provider defendant shall serve on other parties one legible copy of all discoverable medical records in such party's possession, custody, or control. Original exhibits which are impractical or impossible to copy must be made available to all parties for review. Medical reports of consultants retained by a party for the advancement or defense of the case and medical literature must also be served on other parties if such literature or reports is to be submitted to the panel.

(2) Each party shall file with the Clerk and serve on each other party a list of all medical records, medical reports and medical literature which the party will transmit or make available to the panel.

(3) Medical records include medical records of hospitals, physicians, or other health care providers, addressing an issue of health relevant to the plaintiffs' complaint, whether generated before or subsequent to the event giving rise to the claim and whether generated by the health care provider named in the complaint or by other health care providers. Medical records also include autopsy reports and exhibits such as x-rays and slides.

(4) Upon agreement of the parties or order of the court, and after a reasonable time for inspection, each party shall submit to each member of the panel one legible copy of such party's medical records, medical reports and medical literature, and notify the panel members of the availability and location of original exhibits for which submission to the panel is impractical or impossible. If the plaintiff serves the defendant with medical reports of consultants, the defendant has 30 days to serve medical reports of its consultants on the plaintiff. Thereafter, the reports may be submitted to the panel. Any additional reports may be submitted only with leave of the court.

(5) A party may file and serve on each member of the panel a notice advising the panel of further relevant medical records of which the noticing party does not have possession, custody or control.

(6) In the event a party fails or is unable to submit relevant medical records to the panel, and the panel is unable to obtain access to such records by reason thereof, any party or the panel may apply to the court for leave to obtain such records by court order. The court may delay further proceedings until the panel is provided with the additional medical records.

(7) Within 30 days after service of the court's initial panel nominations, each party shall serve upon the panel and all other parties the information and materials required to be disclosed under Rule 26(a)(1)(A), (B), (C), and 26(a)(2).

(d) Preliminary Findings of Fact and Conclusions of Law. A party may move the court to resolve issues of fact or law prior to submission of the case to the panel, or to furnish instructions of fact or law to the panel. Submission of the case to the panel will be deferred pending determination of the motion by the court.

(e) Instructions to Panel. The court shall provide the panel with a written order which states:

(1) The questions listed in AS 09.55.536, clarified or changed as the court deems appropriate to the case.

(2) That the panel is to prepare and submit to the court a list of all persons interviewed, a list of treatises or medical literature used by the panel in its deliberations, and a list of exhibits it examined (such as X-rays, slides, and other items which are not reproducible on paper).

(3) The general nature of the allegations made against each health care provider and of the answer to those allegations. Alternately, the court may submit a copy of the complaint and the answer and advise the panel that they are to address only the medical issues.

(4) That the panel or the Alaska State Medical Association is to retain copies of medical records submitted to them until further notice from the court. The court may make special provision for the safekeeping or retention by the Clerk of Court of X-rays or other original exhibits.

(5) That the panel must maintain a recording of any testimony or oral statements of witnesses and shall keep copies of all written statements the panel may receive or take, whether from witnesses, consultants, or other sources.

(6) That the panel is to review the case of each health care provider individually and render an individual, separate opinion with regard to the allegations against each health care provider.

(7) The name and location of the court personnel who might assist the panel, and that the panel may communicate with the court concerning any questions it may have, or make any requests for assistance.

(8) Any matters of fact or law on which the court has ruled, and that the panel is to review the matter in light of the court's finding and instructions on the law.

(9) That in the event parties are named as defendants who are not health care providers, the panel's consideration is to be directed to the health care providers only.

(10) That the panel is not to communicate with the parties or their attorneys, except to arrange to obtain or review an original exhibit in the possession of one of the parties, or to arrange an examination of the plaintiff, or to arrange an interview with the plaintiff or health care provider, or to arrange the scheduling of the testimony of a panel member at a deposition or at trial.

(f) Interviews by the Panel.

(1) If an attorney desires to be present at an interview of his or her client by the panel, the attorney must give reasonable notice of an intent to do so to the other parties so they may also appear at the interview. If the attorney for the person being interviewed does not appear, no other attorney or party may appear. An attorney appearing before the panel may not question his or her client or any other persons appearing before the panel, nor may an attorney or party cross-examine witnesses or ask questions of the panel. A person being interviewed by the panel may not be accompanied by any representative other than the person's attorney.

(2) Any party may request the panel to interview any person or party.

(g) [Applicable to cases filed before August 7, 1997.] Discovery. Except by leave of court, no discovery may be conducted until the report of the panel has been filed or until 80 days have elapsed from the date the case is at issue, whichever is first to occur, unless discovery is further stayed for good cause by order of the court.

(g) [Applicable to cases filed on or after August 7, 1997.] Discovery. Except by leave of court, no discovery may be conducted until the report of the panel has been filed or until 60 days after selection of the panel, whichever is first to occur, unless discovery is further stayed for good cause by order of the court.

(Added by SCO 837 effective August 1, 1987; amended by SCO 1172 effective July 15, 1995; and by SCO 1281 effective August 7, 1997)

Note to SCO 1281: Paragraph (g) of this rule was amended by ch. 26, § 42, SLA 1997. According to § 55 of the Act, the amendment to Civil Rule 72.1 applies "to all causes of action accruing on or after the effective date of this Act." The amendment to Rule 72.1 adopted by paragraph 7 of this order applies to all cases filed on or after August 7, 1997. See paragraph 17 of this order. The change is adopted for the sole reason that the legislature has mandated the amendment.

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PART XI. SUPERIOR COURT AND CLERKS

Rule 73. The Clerk.

(a) When Clerk's Office Is Open. The clerk's office with the clerk or a deputy in attendance shall be open during business hours on all days except judicial holidays and Saturdays.

(b) Orders by Clerk. The clerk is authorized to enter the following orders of the superior or district court without further direction by the court:

(1) Orders on consent for the substitution of attorneys.

(2) Orders on consent satisfying a judgment or an order for the payment of money, withdrawing stipulations, annulling bonds and exonerating sureties.

(3) Orders entering default for failure to plead or otherwise defend as provided in Rule 55(a).

(4) Orders upon motions and applications for issuing mesne process and issuing final process to enforce and execute judgments.

(5) Any other orders which do not require allowance or order of the court.

The clerk must forthwith notify the judge before whom the action is pending of the clerk's action in entering any such order. Any order so entered may be suspended, altered or rescinded by the court for cause shown.

(c) Judgments by Clerk. The clerk is authorized to enter the following judgments of the superior or district court forthwith without further direction from the court:

(1) Default judgments under Rule 55(b) upon the following proof: an affidavit that the person against whom judgment is sought is not an infant or an incompetent person, and an affidavit under the Soldiers' and Sailors' Civil Relief Act of 1940, as amended, that defendant is not in the armed forces of the United States.

(2) Judgments on offers of judgment in the circumstances set forth in Rule 68.

(d) Notice of Orders or Judgments. Immediately upon the entry of an order or judgment, the clerk shall give notice by distributing a copy to each party who is not in default for failure to appear.

(Adopted by SCO 5 October 9, 1959; amended by SCO 77 effective July 30, 1965; by SCO 258 effective November 15, 1976; by SCO 289 effective January 15, 1978; by SCO 447 effective November 24, 1980; by SCO 499 effective January 18, 1982; by SCO 500 effective January 18, 1982; by SCO 554 effective April 4, 1983; and by SCO 1153 effective July 15, 1994)

Note: AS 10.06.658, as enacted by ch. 166, 1, SLA 1988, amended Civil Rule 73 by requiring the clerk of the superior court to send a copy of an order dissolving a corporation to the commissioner of commerce and economic development.

Note: Ch. 128 SLA 2002 (HB 393), Section 3, adds a new Chapter 66 to Title 45 of the Alaska Statutes, concerning the sale of business opportunities. According to Section 4 of the Act, AS 45.66.120(b) has the effect of amending Civil Rule 73 by requiring the clerk of the court to mail a copy of an order or judgment in an action under AS 45.66.120 to the attorney general.

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Rule 74. Books and Records Kept by Clerk and Entries Therein.

(a) Civil Case File and Index. All papers filed with the clerk shall be marked with the case number and the date of filing and shall be placed in the case file in chronological order. The clerk shall maintain an alphabetical index of every civil case filed. All parties in each case shall be included in the index.

(b) Civil Judgments and Orders. The clerk shall keep, in such form and manner as the administrative director of courts may prescribe, a record of every final judgment or order.

(c) Civil Calendar. The clerk shall prepare a calendar listing all cases scheduled for hearings and trials. The calendar shall indicate the type of proceeding and shall distinguish jury actions from nonjury actions. A copy of the calendar shall be posted in a public place within the court building.

(d) Other Books and Records of the Clerk. The clerk shall also keep such other books and records as may be required from time to time by the administrative director of the courts.

(e) Records to Remain in Custody of Clerk. Except as otherwise provided by these rules or by order of the court, no record or paper belonging to the files of the court may be taken from the office or custody of the clerk.

(f) Use of Records by Court Officers. If it is necessary for a judge, master, examiner, magistrate judge or court reporter to use pleadings or other papers for purposes of the action or proceeding, at places other than the clerk's office, courtroom or judge's chambers, the same may be taken from the office of the clerk upon the delivery to the clerk of a receipt signed by the officer who desires the use of said papers.

(g) Records After Final Determination.

(1) After final judgment and after the time has passed for taking an appeal or filing a petition for review, all models, diagrams, exhibits and depositions heretofore or hereafter filed in any action, shall be returned to the submitting party, without the necessity of filing any copies thereof.

(2) After final judgment, and upon the filing of a stipulation waiving and abandoning the right to appeal, to petition for review, or to move for a new trial, all such models, diagrams, exhibits and depositions may be withdrawn from the clerk's office by the submitting party, without the necessity of filing any copies thereof.

(3) If such models, diagrams, exhibits, and depositions are not so returned or withdrawn as above indicated, the clerk shall destroy the same or make such other disposition of them as the court may approve.

(4) Nothing contained in this subdivision (g) of this rule shall prevent the court, for special reasons and after notice, from making such other order with respect to any files, models, exhibits and depositions as it may deem advisable.

(h) Documents Presented Ex Parte. Every document presented by counsel to the court ex parte in support of an order, when signed by the court, will be deemed to be in the custody of the court. Each such document shall forthwith be delivered by counsel presenting the same to the clerk for filing, unless the judge or the judge's secretary desires to retain any such document in chambers for delivery by such judge or the judge's secretary to the clerk.

(Adopted by SCO 5 October 9, 1959; amended by SCO 152 effective April 20, 1972; by SCO 163 effective May 30, 1973; by SCO 554 effective April 4, 1983; by SCO 1098 effective January 15, 1993; by SCO 1153 effective July 15, 1994; by SCO 1210 effective July 15, 1994; and by SCO 1829 effective October 15, 2014)

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Rule 75. Record of Proceedings-- Transcript as Evidence.

(a) Record of Proceedings. In all actions and proceedings in the superior court there shall be kept a stenographic or electronic record of the following:

(1) All proceedings had in open court unless the parties with the approval of the judge shall specifically agree to the contrary; and

(2) Such other proceedings as may be required by court rule or order of the court.

(b) Transcript as Evidence. Whenever the testimony of a witness at a trial or a hearing which was stenographically reported or electronically recorded is admissible in evidence at a later trial, it may be proved by the transcripts thereof duly certified by the person who reported the testimony or by an officer of the court.

(Adopted by SCO 5 October 9, 1959; amended by SCO 465 effective June 1, 1981)

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Rule 76. Form Papers.

(a) Form in General. All pleadings, motions, affidavits, memoranda, instructions and other papers and documents presented for filing with the clerk or intended for use by the judge, must conform to the following requirements:

(1) Paper Size and Quality: Documents must be 8-1/2 x 11 inches. The paper must be opaque, unglazed white paper of good quality and at least sixteen pound weight.

(2) Typed or Hand Printed in Ink: Text must be typed in clear and legible black typeface or hand printed in black ink.

(3) Typeface and Size: If typed, the text of a document, including headings and footnotes, must be at least 12 point Courier or another typeface allowed under Appellate Rule 513.5(c) if its size meets the requirements of that rule. Footers required under (a)(5) of this rule and certificates of distribution or service may be typed in a smaller font, but not smaller than 10 point.

(4) Line Spacing: Unless otherwise provided in these rules, text must be double-spaced or one-and-one-half spaced, except that headings and footnotes must be single-spaced, and longer quotations must be single- spaced and indented at least one-half inch on each side. Other parts of a document, including the case caption, headers and footers, signature blocks, certificates, and notarizations, should be single-spaced.

(5) Footer: Documents longer than one page must contain a footer that sets out the title of the document, case name, case number, and page numbering (page x of y). The title of the document and the case name may be abbreviated.

(6) Single-Sided: Text may only be typed or printed on one side of the paper.

(7) Two-Hole Punched: Documents must be two-hole punched at the top center of each page.

(8) Stapled: If a document is longer than one page, all pages must be stapled together at the upper left corner. Documents that are too thick to be stapled must be bound together at the top with a metal fastener (e.g., an Acco fastener).

(b) Interlineations. Interlineations are not permitted unless made by the court.

(c) Exhibits. (1) Each page of an exhibit must be marked with the number or letter of the exhibit, the page number, and the total number of pages in the exhibit. Example: Ex. A, p. 1 of 10

(2) Exhibits must be attached to the principal document unless they are confidential. Confidential exhibits must be submitted in a sealed envelope marked with the case name, case number, number or letter of the exhibit, and name of the document to which they relate.

(d) Information To Be Placed on First Page.

(1) Attorney Information. The name, address and telephone number of the attorney appearing for a party to an action or proceeding, or of a person appearing in propria personal, should be typewritten or printed in the left margin of the first page of the document. However, this information may be printed in the space to the left of center of the paper beginning one inch below the top edge. The typeface must be no smaller than 10 point and no larger than 12 point.

(2) Caption. Every document must contain a caption setting forth the title of the court, the city in which the court is located, the title of the action (i.e., the names of the parties), the case number, and the document name. This information must be formatted as follows:

(A) The title of the court and the city in which the court is located must be centered at the top of the page, beginning 1 inch below the top edge or 1/2 inch below the name, address and telephone number of the attorney or pro se party, if this information appears at the top of the page.

(B) The title of the action (i.e., the names of the parties) must be inserted below the title of the court and to the left of center of the page.

(C) A space must be reserved for the clerk's file stamp to the right of the title of the action. The case number must be inserted below this space.

(D) The document name may be centered on the page below the title of the action and the case number or placed to the right of the title of the action beneath the case number.

(3) Title of the Action. The complaint must include the names of all the parties in the title of the action, but in other documents it is sufficient to state the name of the first party on each side with appropriate indication of other parties ("et al" or "and others"). Note: See Civil Rule 10(a) for other requirements related to the names of parties in complaints.

(e) Name and Bar Number Typed Beneath Signature Line. The name of the person signing a pleading or paper must be typed under the signature line. If the person is an attorney, the person's Alaska Bar Association membership number must be entered following the person's name. Documents must be dated and signed in blue or black ink.

(f) Judge's Name Typed on Orders and Judgments. The name of the judge signing an order or judgment must be typed under the judge's signature line.

(g) Replacing Papers Lost or Withheld. If an original paper or pleading is lost or withheld by any person, the court may order a verified copy of the document to be filed and used in lieu of the original.

(h) Compliance With Rule. The clerk may refuse to accept for filing any document that does not comply with the requirements of this rule. The judge to whom the case is assigned may, in cases of emergency or necessity, permit departure from the requirements of this rule.

(Adopted by SCO 5 October 9, 1959; amended by SCO 258 effective November 15, 1976; by SCO 441 effective November 15, 1980; by SCO 567 effective July 1, 1983; by SCO 568 effective September 1, 1983; by SCO 687 effective May 1, 1986; by SCO 907 effective August 1, 1988; by SCO 931 effective January 15, 1989; by SCO 1153 effective July 15, 1994; by SCO 1210 effective July 15, 1995; by SCO 1287 effective July 15, 1998; by SCO 1344 effective August 13, 1998; by SCO 1386 effective April 15, 2000; rescinded and readopted by SCO 1415 effective October 15, 2000)

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Rule 77. Motions.

(a) Service. All motions, orders to show cause, petitions, applications and every other such matter shall be served upon the adverse party, or, after the adverse party has appeared by counsel, upon counsel for the adverse party.

(b) Requirements There shall be served and filed with the motion:

(1) legible copies of all photographs, affidavits and other documentary evidence which the moving party intends to submit in support of the motion;

(2) a brief, complete written statement of the reasons in support of the motion, which shall include a memorandum of the points and authorities upon which the moving party will rely; and

(3) an appropriate order for the court's signature in the event that the motion is granted.

(4) In addition, if a motion is filed and served on a defendant before an answer to the complaint is due under the rules, the motion must be accompanied by a notice advising the defendant of the right to file a written opposition to the motion, the time within which the opposition must be filed under Civil Rule 77(c)(2)(i), and the place where it must be filed.

(c) Opposition. Unless otherwise ordered by the court or otherwise stipulated by the parties with court approval, opposition to the motion or other application shall be made as follows:

(1) Form. Each party opposing the motion or other application shall serve and file either:

(i) legible copies of all photographs, affidavits and other documentary evidence upon which the party intends to rely; and

(ii) a brief, complete written statement of the reasons in opposition to the motion, which shall include an adequate answering brief of points and authorities; and

(iii) an appropriate order for the court's signature in the event that the motion is denied; or

(iv) a written statement that the party does not oppose the motion.

(2) Time. The time for filing opposition to the motion or other application shall be 10 days from the date of service of the motion or application, except as follows:

(i) for motions or other applications filed and served on the defendant before an answer to the complaint is due under the rules, the time for filing opposition shall be either 10 days from the date of service, or the date the defendant's answer is due under the rules, whichever is later;

(ii) for motions to dismiss, motions for summary judgment and motions for judgment on the pleadings, the time for filing opposition shall be either 15 days from the date of service or, if the plaintiff is the movant, the date the defendant's answer is due under the rules, whichever is later; and

(iii) for motions filed under Civil Rules that prescribe their own response times (for example, Civil Rule 88 and Civil Rule 89) or that authorize expedited relief (for example, Civil Rule 77(g) or Civil Rule 65), the time for filing opposition shall be governed by the specific rule under which the motion is filed.

(d) Reply Reply and supplemental materials and memoranda, if any, may be served and filed by the moving party within five days of the date of the service of the opposition to the motion.

(e) Oral Argument.

(1) If either party desires oral argument on the motion, that party shall request a hearing within five days after service of a responsive pleading or the time limit for filing such a responsive pleading, whichever is earlier.

(2) Except on motions to dismiss; motions for summary judgment; motions for judgment on the pleadings; other dispositive motions; motions for delivery and motions for attachment, oral argument shall be held only in the discretion of the judge. The amount of time to be allowed for oral argument shall be set by the judge.

(3) If oral argument is to be held, the argument shall be set for a date no more than 45 days from the date the request is filed or the motion is ripe for decision, whichever is later.

(f) Disposition Without Oral Argument. If oral argument is not heard, the court shall promptly rule on the motion and comply with Administrative Rule 3.

(g) Expedited Consideration. A party may move for expedited consideration of its principal motion by filing a second motion requesting relief in less time than would normally be required for the court to issue a decision.

(1) The motion must be captioned "Motion for Expedited Consideration" and must have an appropriate order on the issue of expedited consideration attached.

(2) The motion for expedited relief must comply with other provisions of this rule, including paragraph (e) concerning any request for oral argument except as the provisions of this paragraph specify otherwise.

(3) The motion for expedited consideration must include an affidavit or other evidence showing the facts which justify expedited consideration, and the date before which a decision on the principal motion is needed.

(4) If the parties are represented by counsel, the motion for expedited consideration shall include a certification of counsel that a good faith effort has been made to resolve the issues raised with opposing counsel, but that these efforts were not successful; or, in the alternative, that it was not possible to attempt to resolve the issues with opposing counsel beforehand. The certification shall include a description of what efforts were made to resolve the issues for which expedited consideration is sought, or an explanation of why no efforts were made.

(5) The motion for expedited consideration must include proof of service; and, if the motion requests a decision before the usual time for response to the motion, must include a certificate indicating when and how the opposing party was notified of the motion, or, if the opposing party was not notified, what efforts were made to notify the opposing party and why it was not practical to notify the opposing party in a manner and at a time that a response could be made.

(6) The court may not grant the motion for expedited consideration prior to allowing the opposing party a reasonable opportunity to respond, either in person, by telephone or in writing, absent compelling reasons for a prompt decision and a showing that reasonable efforts were made to notify the opposing party of the motion for expedited consideration in time to allow a reasonable opportunity to respond.

(7) The court may not grant the principal motion prior to allowing the opposing party a reasonable opportunity to respond, either in person, by telephone or in writing, unless it clearly appears from the specific facts in the motion papers or court records that immediate and irreparable injury, loss or damage would result to the moving party before any reasonable opportunity to respond could be given. In no event will a decision be rendered on the principal motion without a response until at least 24 hours after the date of service of the principal motion or the date actual notice is given, whichever is sooner. However, this limitation does not preclude a decision in less than 24 hours on an application for relief made pursuant to Civil Rule 65(b) or any other rule or statute authorizing such action.

(h) Stipulations. Stipulations between counsel may be submitted in support of motions, but are not binding on the court unless otherwise specifically provided by rule.

(i) Evidence. When a motion is based on facts not appearing of record, the court may hear the matter on affidavits or other documentary evidence presented by the respective parties, but the court may direct that the matter be heard wholly or partly on testimony or deposition.

(j) Frivolous Motions or Oppositions.The presentation to the court of frivolous or unnecessary motions or frivolous or unnecessary opposition to motions, which unduly delay the course of the action proceeding, or the filing of any motion to dismiss or motion to strike for the purpose of delay where no reasonable ground appears therefor subjects counsel presenting or filing such, at the discretion of the court, to imposition of costs and attorney's fees to the opposing party, to be fixed by the court and paid to the clerk of court, and any other sanctions, which may be authorized by rule or law.

(k) Motions for Reconsideration. A motion to reconsider the ruling must be made within ten days after the date of notice of the ruling as defined in Civil Rule 58.1(c) unless good cause is shown why a later filing should be accepted. In no event shall a motion to reconsider a ruling be made more than ten days after the date of notice of the final judgment in the case.

(1) A party may move the court to reconsider a ruling previously decided if, in reaching its decision:

(i) The court has overlooked, misapplied or failed to consider a statute, decision or principle directly controlling; or

(ii) The court has overlooked or misconceived some material fact or proposition of law; or

(iii) The court has overlooked or misconceived a material question in the case; or

(iv) The law applied in the ruling has been subsequently changed by court decision or statute.

(2) The motion for reconsideration shall specifically state which of the grounds for reconsideration specified in the prior subparagraph exists, and shall specifically designate that portion of the ruling, the memorandum, or the record, or that particular authority, which the movant wishes the court to consider. The motion for reconsideration and supporting memorandum shall not exceed five pages.

(3) No response shall be made to a motion for reconsideration unless requested by the court, but a motion for reconsideration will ordinarily not be granted in the absence of such a request.

(4) The motion for reconsideration shall be decided by the court without oral argument. If the motion for reconsideration has not been ruled upon by the court within 30 days from the date of the filing of the motion, or within 30 days of the date of filing of a response requested by the court, whichever is later, the motion shall be taken as denied.

(5) The court, on its own motion, may reconsider a ruling at any time not later than 10 days from the date of notice of the final judgment in the case.

(l) Citation of Supplemental Authorities. When pertinent authorities come to the attention of a party after the party's memorandum has been filed, or after oral argument but before decision, the party may promptly advise the court, by letter, with a copy to adversary counsel, setting forth the citations. There must be a reference either to the page of the memorandum or to a point argued orally to which the citations pertain, but the letter may not contain argument or explanations. Any response must be made promptly and must be similarly limited.

(m) Filings in Microfilmed Cases. If a motion, petition or request is filed in a case that has been microfilmed and destroyed pursuant to the Records Retention Schedule, the attorney or party must attach (1) a copy of any relevant orders, judgments and other documents necessary for the court's ruling, and (2) either proof of notice pursuant to Civil Rule 5(g) or an affidavit that Rule 5(g) is not applicable. If such documents are not attached, the clerk will notify counsel that such documents must be submitted before the court will consider the motion, petition or request.

(Adopted by SCO 5 October 9, 1959; amended by SCO 49 effective January 1, 1963; by SCO 158 effective February 15, 1973; by SCO 236 effective March 1, 1976; by SCO 359 effective October 1, 1979; by SCO 367 effective August 1, 1979; by SCO 415 effective August 1, 1980; by SCO 434 effective November 1, 1980; by SCO 447 effective November 24, 1980; by SCO 554 effective April 4, 1983; by SCO 720 effective December 15, 1986; by SCO 819 effective August 1, 1987; by SCO 953 effective July 15, 1989; by SCO 1027 effective July 15, 1990; by SCO 1050 effective January 15, 1991; by SCO 1121 effective July 15, 1993; by SCO 1153 effective July 15, 1994; by SCO 1159 effective July 15, 1994; by SCO 1423 effective April 15, 2001; by SCO 1564 effective April 15, 2005; by SCO 1733 effective June 4, 2010; and by SCO 1787 effective nunc pro tunc July 1, 2012)

Editor's Note: Section 1 of Chapter 96 of the Session Laws of Alaska 1981 has the effect of changing Civil Rule 77 by establishing a procedure and time limits for court review of an income assignment order which differ from those generally applicable in civil actions.

Note: Chapter 54 SLA 2005 (HB 95) enacted extensive amendments and new provisions related to public health, including public health emergencies and disasters. According to Section 13(a) of the Act, AS 18.15.375(c)(3), (d), and (e), and 18.15.385(d) – (k), enacted in Section 8, have the effect of amending Civil Rule 77 by adding special proceedings, timing, and pleading requirements for matters involving public health.

Note: Chapter 44, SLA 2010 (HB 334), effective June 4, 2010, enacted changes relating to child custody, modification, and visitation standards for a military parent. According to section 5 of the Act, AS 25.20.095(d), added by section 1 of the Act, and AS 25.20.110(f), added by section 2 of the Act, have the effect of amending Alaska Rule of Civil Procedure 77(g) by changing the procedure for expedited consideration in certain cases involving child custody or visitation and a military parent.

Notes: Chapter 71 SLA 2012 (SB 86) added new sections to AS 13.26 relating to the protection of vulnerable adults, effective July 1, 2012. According to section 48(c) of the Act, AS 13.26.206, enacted by section 10, has the effect of amending Alaska Rule of Civil Procedure 77, by requiring a hearing within 72 hours of the filing of a petition for the appointment of a temporary conservator. According to section 48(d) of the Act, AS 13.26.208, enacted by section 10, has the effect of amending Alaska Rule of Civil Procedure 77, by providing for a hearing on an application for a temporary protective order on 10 days’ notice. According to section 48(e) of the Act, AS 13.26.209(a) and (b), enacted by section 10, have the effect of amending Alaska Rule of Civil Procedure 77, by providing for a hearing on a request for modification of a protective order on 20 days’ notice and for modification of an ex parte protective order on three days’ notice.

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Rule 78. Findings, Conclusions, Judgments and Orders--Preparation and Submission.

(a) Preparation and Submission -- Service. Unless otherwise ordered by the court, counsel for the successful party to an action or proceeding shall prepare in writing and file and serve on each of the other parties proposed findings of fact, conclusions of law, judgments and orders. In a case in which the custody of children is at issue, a party required to prepare findings of fact, conclusions of law, or a judgment or order pertaining to that issue shall serve and file them within 10 days after the day on which the judge announces on the record that the party is to prepare them, pursuant to Rule 58.1(a)(1). Proof of service on the other parties must be on a separate document.

(b) Objections. Within 5 days after service of any of the documents mentioned in paragraph (a), a party may file and serve a written detailed statement of objections to any such document and the reasons therefor. If objections are filed and served within the time specified herein, the court may thereafter require the attorneys interested to appear before it, or it may sign the document as prepared by counsel for the successful party or as modified by the court.

(c) Punitive Damages Award. When punitive damages are awarded, the party preparing the proposed judgment shall serve on the Attorney General in Juneau a notice entitled "Notice of Award of Punitive Damages" and a copy of the proposed judgment.

(d) Order Upon Stipulation. When a party desires an order of court pursuant to stipulation, the party shall title the document "Stipulation and Order" and shall endorse at the end of the instrument the words "It is so ordered" with the date and a blank line for the signature of the judge. The word "Judge" shall appear at the end of the blank line. The name of the judge, if known, shall be typed immediately under the signature line prior to presentation for signature. A stipulation extending time or providing for a continuance shall state the grounds therefor.

(e) Instruments on Which Judgment Entered. In all cases in which a judgment upon a written instrument is entered, such instrument shall be filed with the court, and unless the court otherwise orders, it shall be canceled by marks and writing upon its face. The clerk shall retain the same in the files unless otherwise directed by the court.

(f) Form of Judgments. Judgments for the payment of money must be in the form required by Civil Rule 58.2.

(Adopted by SCO 5 October 9, 1959; amended by SCO 554 effective April 4, 1983; by SCO 580 effective February 1, 1984; by SCO 616 effective May 15, 1985; by SCO 1153 effective July 15, 1994; by SCO 1295 effective January 15, 1998; and by SCO 1415 effective October 15, 2000)

NOTE: Sections 41, 43, 45, and 46 of chapter 87 SLA 1997 amend AS 25.20.050(n), AS 25.24.160(d), AS 25.24.210(e), and AS 25.24.230(i), respectively, to require that an order or acknowledgement of paternity, a divorce decree, a petition for dissolution of marriage, and a dissolution decree include the social security number of each party to the action and each child whose rights are being addressed. According to § 151 of the Act, these provisions have the effect of amending Civil Rules 52, 58, 78, and 90.1 by requiring the court to include social security numbers, if ascertainable, of parties and children in certain petitions, pleadings, and judgments.

Cross References

CROSS REFERENCE: AS 09.17.020(j)

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Rule 79. Costs--Taxation and Review.

(a) Allowance to Prevailing Party. Unless the court otherwise directs, the prevailing party is entitled to recover costs allowable under paragraph (f) that were necessarily incurred in the action. The amount awarded for each item will be the amount specified in this rule or, if no amount is specified, the cost actually incurred by the party to the extent this cost is reasonable.

(b) Cost Bill. To recover costs, the prevailing party must file and serve an itemized and verified cost bill, showing the date costs were incurred, within 10 days after the date shown in the clerk's certificate of distribution on the judgment. Failure of a party to file and serve a cost bill within 10 days, or such additional time as the court may allow, will be construed as a waiver of the party's right to recover costs. The prevailing party must have receipts, invoices, or other supporting documentation for each item claimed. This documentation must be available to other parties for inspection and copying upon request and must be presented to the clerk upon request. Documentation may be filed only if requested by the clerk or in response to an objection.

(c) Objection and Reply. A party may object to a cost bill by filing and serving an objection within 7 days after service of the cost bill. The prevailing party may respond to an objection by filing and serving a reply within 5 days after service of the objection.

(d) Taxing of Costs by Clerk. Promptly upon expiration of the time for filing objections, or if an objection is filed, the time for filing a reply, the clerk shall issue an itemized award of costs allowable under this rule. No cost bill hearing will be held unless requested by the clerk. If a hearing is held, it will be limited to issues identified by the clerk in the notice of hearing. The clerk may deny costs requested by the prevailing party on grounds that

(1) the cost is not allowed under paragraph (f);

(2) the party failed to provide an adequate description or adequate supporting documentation following a request by the clerk or another party; or

(3) the amount claimed by the prevailing party is unreasonable.

The clerk may not deny costs on grounds that the costs were not necessarily incurred in the action. If a party objects on this basis, the party must seek review under paragraph (e) of the clerk's action in awarding the cost.

(e) Review by Court. A party aggrieved by the clerk's action in awarding costs may file a motion for review of the clerk's award. The motion must be filed and served within five days after the date shown on the clerk's certificate of distribution on the award. The motion must particularly designate each ruling of the clerk to which objection is made. Matters not so designated will not be considered by the court. Costs awarded by the clerk are presumed to be reasonable.

(f) Allowable Costs. The following items are the only items that will be allowed as costs:

(1) the filing fee;

(2) fees for service of process allowable under Administrative Rule 11 or postage when process is served by mail;

(3) other process server fees allowable under Administrative Rule 11;

(4) the cost of publishing notices required by law or by these rules;

(5) premiums paid on undertakings, bonds, or security stipulations where required by law, ordered by the court, or necessary to secure some right accorded in the action;

(6) the cost of taking and transcribing a deposition allowed by Civil Rule 30(a) or 31(a) (including a deposition that is ordered by the court or agreed to by the parties under those rules), as follows:

(A) the court reporter's fee and travel expenses to communities where a local court reporter is not available;

(B) expenses allowed by Civil Rule 30.1(e) for recording, editing, or using an audio or audio-visual deposition; and

(C) the cost of the original plus one copy of the transcript;

(7) witness fees allowed under Administrative Rule 7;

(8) the fee of an interpreter or translator for a witness when that witness is entitled to a fee under Administrative Rule 7;

(9) travel costs allowed under paragraph (g) of this rule;

(10) long distance telephone charges for telephonic participation by an attorney or party at court proceedings, depositions, the meeting of the parties required by Civil Rule 26(f), and interviews of witnesses other than the party;

(11) charges paid by the prevailing party's attorney for computerized legal research;

(12) copying costs for paper copies, photographs, and microfilm, the cost of scanning, imaging, coding, and creating electronic media files, such as computer diskettes or tapes, and the cost of duplicating text files or otherwise copying documents or data in an electronic medium, as follows:

(A) for copies from the court, a copy center, or a person or entity other than the prevailing party's attorney, the amount charged for the copies; and

(B) for copies from the prevailing party's attorney, the amount charged by the attorney or $.15 per copy, whichever is less;

(13) exhibit preparation costs;

(14) the cost of transcripts ordered by the court;

(15) other costs allowed by statute; and

(16) any sales or other taxes necessarily incurred by the party in connection with a cost allowed in this subsection.

(g) Travel Costs. (1) Travel costs will be allowed for

(A) one attorney to attend trial, hearings on dispositive motions, settlement conferences, and the meeting of the parties required by Civil Rule 26(f), but only if no local attorney is present; if more than one out-of- town attorney attends a proceeding at which no local attorney is present, travel costs will be allowed for the attorney who traveled the shortest distance to the trial site;

(B) one attorney to attend depositions, interviews of witnesses who are not deposed, and meetings to review documents produced in the course of discovery;

(C) one legal assistant or investigator to interview witnesses who are not deposed or to review documents produced in the course of discovery; and

(D) witnesses to the extent permitted by Administrative Rule 7.

(2) Travel costs are subject to the following limitations:

(A) air fare is allowed at the coach class fare or the actual fare, whichever is less;

(B) ground transportation, including car rental, is allowed outside the traveler's home city; and

(C) food and lodging is allowed at the same per diem rate allowed for court employees.

(3) In unusually complex cases, the court may allow a prevailing party to recover travel costs for more than one attorney to participate in the activities described in section (g)(1)(A) of this rule. To request travel costs for more than one attorney, the prevailing party must file a motion for court review of the clerk's award as provided in paragraph (e) and must include supporting documentation for each item claimed. These costs should not be included in the cost bill filed with the clerk.

(4) To recover travel costs, the prevailing party must include the following information for each trip: the name of the traveler, whether the traveler is an attorney, legal assistant, or investigator, the reasons for the travel, and the travel dates.

(h) Equitable Apportionment Under AS 09.17.080. In a case in which damages are apportioned among the parties under AS 09.17.080, costs must be apportioned and awarded according to the provisions of Civil Rule 82(e).

(Adopted by SCO 5 October 9, 1959; amended by SCO 56 effective November 1, 1963; by SCO 258 effective November 15, 1976; by SCO 554 effective April 4, 1983; by SCO 1085 effective January 15, 1992; by SCO 1118 effective July 15, 1993; by SCO 1153 effective July 15, 1994; by SCO 1200 effective July 15, 1995; by SCO 1246 effective July 15, 1996; and by SCO 1279 effective July 31, 1997; rescinded and readopted by SCO 1306 effective January 15, 1998; amended by SCO 1340 effective January 15, 1999; and by SCO 1631 effective April 16, 2007)

Note: AS 25.25.313(c), added by § 6 of ch. 57 SLA 1995 (the Uniform Interstate Family Support Act), has the effect of amending Civil Rule 79 by requiring the court to award costs and fees against a party who requests a hearing primarily for delay in a support proceeding listed in AS 25.25.301.

NOTE: In 1997 the legislature enacted AS 18.16.030(m), which provides that a filing fee may not be required of, and court costs may not be assessed against, a minor in a proceeding to bypass parental consent to an abortion. According to ch. 14, § 10 SLA 1997, AS 18.16.030(m) has the effect of amending Administrative Rule 9, Civil Rule 79, and Appellate Rule 508 by prohibiting filing fees and assessment of court costs in certain actions. Instead of amending individual rules to implement AS 18.16.030, the supreme court has adopted a separate rule on judicial bypass proceedings in the superior court and a separate rule on judicial bypass appeals. See Probate Rule 20 & Appellate Rule 220.

Note: Chapter 94 SLA 1998 adopts AS 46.03.761, which allows the Department of Environmental Conservation to impose administrative penalties against an entity that fails to construct or operate a public water supply system in compliance with state law or a term or condition imposed by the department. According to section 5 of the act, subsection (j) of this statute has the effect of amending Civil Rules 79 and 82 by allowing the recovery of full reasonable attorney fees and costs in an action to collect administrative penalties assessed under AS 46.03.761.

Note: Chapter ___SLA 03 (HB 280) amends Chapters 10 and 45 of Title 9 of the Alaska Statutes relating to claims and court actions for defects in the design, construction, and remodeling of certain dwellings and limits on when certain court actions may be brought. According to Section 4(2) of the Act, AS 09.45.889(b) has the effect of amending Civil Rule 79 by allowing the court to deny costs to a claimant in the situation described in AS 09.45.889(b), even if the claimant is the prevailing party.

Note: Chapter 60, SLA 2013 (HB 57), effective July 1, 2014, adopted the Alaska Entity Transactions Act, effective July 1, 2014. According to section 30 of the Act, AS 10.55.603(a), enacted by section 10 of the Act, has the effect of amending Alaska Rule of Civil Procedure 79, directing that the process service fee be allowed to a prevailing party, whether or not the fee amount exceeds the amount allowed by Rule 11, Alaska Rules of Administration.

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Rule 80. Bonds and Undertakings.

(a) Approval by Clerk. Except where approval by a judge is required by law, the clerk is authorized to approve all undertakings, bonds, and stipulations of security given in the form and amount prescribed by statute or order of the court, where the same are executed by approved surety companies.

(b) Qualifications of Sureties.

(1) Individuals. Each individual surety must be a resident of the state. Each must be worth the sum specified in the undertaking, exclusive of property exempt from execution, and over and above all just debts and liabilities, except that where there are more than two sureties, each may be worth a lesser amount if the total net worth of all of them is equal to twice the sum specified in the undertaking. No attorney at law, peace officer, clerk of any court, or other officer of any court is qualified to be surety on the undertaking.

(2) Corporations. A corporate surety must be in compliance with applicable laws of the state, and must be qualified by law to act as surety in furnishing bail.

(c) Affidavits of Sureties.

(1) Individuals. The undertaking must contain an affidavit of each surety which shall state that the surety possesses the qualifications prescribed by subdivision (b) of this rule.

(2) Corporations. The undertaking of a corporate surety must contain affidavits showing the authority of the agent to act for the corporation and compliance by the corporation with all statutory requirements.

(d) Justification of Sureties.

(1) Information to Be Furnished. Sureties on any bond or undertaking shall furnish such information as may be required by the judge or magistrate judge approving the same, upon forms provided by the clerk of court for such purpose.

(2) Examination as to Sureties Qualifications. Upon three days' notice to a party, an adverse party may require an individual surety or the agent of a corporate surety to be examined under oath concerning the surety's qualifications. Evidence as to such qualifications shall be taken before any judge or magistrate judge who shall have the authority to approve or reject the bond or undertaking.

(3) Where Not Applicable. The requirements set forth in paragraphs (1) and (2) of this subdivision shall not apply to individual sureties for a national banking association or for a state bank or other financial institution regulated under Title 6 Alaska Statutes.

(e) Approval by Attorneys. Every recognizance, bond, stipulation or undertaking hereinafter presented to the clerk or a judge for approval shall have appended thereto a certificate of an attorney, if a party is represented by an attorney, substantially in the following form:

"Examined and recommended for approval as provided in Rule 80.
Attorney"

Such endorsement by an attorney will signify to the court that the attorney has carefully examined the recognizance, bond, stipulation or undertaking, and that the attorney knows the contents thereof; that the attorney knows the purposes for which it is executed; and that in the attorney's opinion the same is in due form. The recognizance, bond, stipulation or undertaking shall further have appended thereto a form substantially as follows:

"I hereby approve the foregoing.

Dated this ___ day of __________________, 20__.

_____________
Judge (or Clerk)"

(f) Enforcement Against Sureties. By entering into a bond or undertaking, the surety submits to the jurisdiction of the court and irrevocably appoints the clerk of court as the surety's agent upon whom any papers affecting the surety's liability on the bond may be served. The surety's liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk who shall forthwith mail copies to the surety if the surety's address is known. Every bond or undertaking shall contain the consent and agreement of the surety to the provisions of this subdivision of this rule.

(g) Cash Deposit in Lieu of Bond. A cash deposit of the required amount may be made with the clerk in lieu of furnishing a surety bond. At the time of such cash deposit, there shall be filed a written instrument properly executed and acknowledged by the owner of the cash, or by the owner's attorney or authorized agent, setting forth the conditions under which the deposit is being made, the ownership of the fund, and the consent and agreement to the provisions of subdivision (f) of this rule.

(Adopted by SCO 5 October 9, 1959; amended by SCO 49 effective January 1, 1963; by SCO 90 effective July 24, 1967; by SCO 258 effective November 15, 1976; by SCO 1153 effective July 15, 1994; and by SCO 1829 effective October 15, 2014)

Cross References

(a) CROSS REFERENCE: AS 09.68.030

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Rule 81. Attorneys.

(a) Who May Practice.

(1) Members of Alaska Bar Association. Subject to the provisions of paragraph (2) of this subdivision, only attorneys who are members of the Alaska Bar Association shall be entitled to practice in the courts of this state.

(2) Other Attorneys. A member in good standing of the bar of a court of the United States, or of the highest court of any state or any territory or insular possession of the United States, who is not a member of the Alaska Bar Association and not otherwise disqualified from engaging in the practice of law in this state, may be permitted, upon motion and payment of the required fee to the Alaska Bar Association, to appear and participate in a particular action or proceeding in a court of this state. The motion, and the notice of hearing, if any, shall be served on the executive director of the Alaska Bar Association and, unless the court directs otherwise by an order pursuant to Rule 5(c) of these Rules, on each of the parties to the action or proceeding. With the motion, the applicant must file with the court the following:

(A) The name, address and telephone number of a member of the Alaska Bar Association with whom the applicant will be associated, who is authorized to practice in the courts of this state.

(B) A written consent to the motion, signed by such member of the Alaska Bar Association.

(C) A certificate from the presiding judge, clerk of the court, or bar association where the applicant has been admitted to practice, executed not earlier than 60 days prior to the filing of the motion, showing that the applicant has been so admitted in such court, that he is in good standing therein and that the applicant's professional character appears to be good.

(D) Proof of payment of the required fee to the Alaska Bar Association.

An attorney thus permitted to appear may participate in a particular action or proceeding in all respects, except that all documents requiring signature of counsel for a party may not be signed solely by such attorney, but must bear the signature also of local counsel with whom the attorney is associated.

(3) Authority and Duties of Attorneys. Local counsel shall be primarily responsible to the court for the conduct of all stages of the proceedings, and their authority shall be superior to that of attorneys permitted to appear under paragraph (2) of this subdivision.

(b) Ex Parte Applications. All motions for ex parte orders must be made by an attorney or in propria persona.

(c) General Appearance by Counsel.

(1) An attorney who files a pleading or appears in a court proceeding on behalf of a party shall be deemed to have entered an appearance for all purposes in that case unless the attorney has filed and served a limited entry of appearance under (d) of this rule.

(2) Except as otherwise ordered by the court, or except as provided in Rule 81(d) and 81(e)(1)(D), a party who has appeared by an attorney may not thereafter appear or act in the party's own behalf in any action or proceeding, unless order of substitution shall have been made by the court after notice to such attorney.

(d) Limited Appearance By Counsel. A party in a non-criminal case may appear through an attorney for limited purposes during the course of an action, including, but not limited to, depositions, hearings, discovery, and motion practice, if the following conditions are satisfied:

(1) The attorney files and serves an entry of appearance with the court before or during the initial action or proceeding that expressly states that the appearance is limited, and all parties of record are served with the limited entry of appearance; and.

(2) The entry of appearance identifies the limitation by date, time period, or subject matter.

(e) Withdrawal of Attorney.

(1) An attorney who has appeared for a party in an action or proceeding may be permitted to withdraw as counsel for such party only as follows:

(A) For good cause shown, upon motion and notice of hearing served upon the party in accordance with Rule 77 and after the withdrawing attorney provides

(i) to the client a list of pending pretrial or post-trial deadlines, appellate deadlines, motion deadlines, and hearing dates and times; and

(ii) to the court the last known address and telephone number of the attorneys client and a certification that the attorney has complied with (e)(1)(A)(i) of this rule; or

(B) Where the party has other counsel ready to be substituted for the attorney who wishes to withdraw; or

(C) Where the party expressly consents in open court or in writing to the withdrawal of the party's attorney, the party has provided in writing or on the record a current service address and telephone number, and the attorney who wishes to withdraw has provided to the client a list of pending pretrial or post-trial deadlines, appellate deadlines, motion deadlines, and hearing dates and times; or

(D) In accordance with the limitations set forth in any limited entry of appearance filed pursuant to Civil Rule 81(d). An attorney may withdraw under this subparagraph by filing a notice with the court, served on all parties of record, stating that the attorney's limited representation has concluded; certifying that the attorney has taken all actions necessitated by the limited representation; and providing to the court a current service address and telephone number and to the client a list of pending pretrial or post-trial deadlines, appellate deadlines, motion deadlines, and hearing dates and times. Upon the filing of such notice, the withdrawal shall be effective, without court action or approval.

(2) An attorney shall be considered to have properly withdrawn as counsel for a party in an action or proceeding in which a period of one year has elapsed since the filing of any paper or the issuance of any process in the action or proceeding, and

(A) The final judgment or decree has been entered and the time for filing an appeal has expired, or

(B) If an appeal has been taken, the final judgment or decree upon remand has been entered or the mandate has issued affirming the judgment or decree.

This subparagraph (2) shall not apply to an attorney who files and serves a notice of continued representation.

(f) Stipulations. Stipulations between parties or their attorneys will be recognized only when made in open court, or when made in writing and filed with the clerk.

(g) Time for Argument. Unless otherwise specially ordered no longer than one quarter hour shall be allowed each party for argument upon any motion, or on any hearing other than a final hearing on the merits. The time for opening statements and arguments at the trial of an action shall be determined in accordance with Civil Rule 46(h).

(h) Disbarment and Discipline. Whenever it appears to the court that any member of the bar has been disbarred or suspended from practice or convicted of a felony, that member shall not be permitted to practice before the court until the member is thereafter reinstated according to existing statutes and rules.

(Adopted by SCO 5 October 9, 1959; amended by SCO 98 effective September 16, 1968; by SCO 258 effective November 15, 1976; by SCO 355 effective April 1, 1979; by SCO 390 effective November 7, 1979; by SCO 604 effective September 14, 1984; by SCO 612 effective January 1, 1985; by SCO 696 effective September 15, 1986; by SCO 876 effective July 15, 1988; by SCO 1153 effective July 15, 1994; by SCO 1450 effective October 15, 2001; by SCO 1544 effective October 15, 2004; and by SCO 1627 (Amended) effective October 15, 2007)

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Rule 82. Attorney's Fees.

(a) Allowance to Prevailing Party. Except as otherwise provided by law or agreed to by the parties, the prevailing party in a civil case shall be awarded attorney's fees calculated under this rule.

(b) Amount of Award.

(1) The court shall adhere to the following schedule in fixing the award of attorney's fees to a party recovering a money judgment in a case:

Judgment and, if awarded,
Prejudgment Interest
Contested With Trial Contested Without Trial Non-Contested
First $ 25,000 20% 18% 10%
Next $ 75,000 10% 8% 3%
Next $400,000 10% 6% 2%
Over $500,000 10% 2% 1%

(2) In cases in which the prevailing party recovers no money judgment, the court shall award the prevailing party in a case which goes to trial 30 percent of the prevailing party's reasonable actual attorney's fees which were necessarily incurred, and shall award the prevailing party in a case resolved without trial 20 percent of its actual attorney's fees which were necessarily incurred. The actual fees shall include fees for legal work customarily performed by an attorney but which was delegated to and performed by an investigator, paralegal or law clerk.

(3) The court may vary an attorney's fee award calculated under subparagraph (b)(1) or (2) of this rule if, upon consideration of the factors listed below, the court determines a variation is warranted:

(A) the complexity of the litigation;

(B) the length of trial;

(C) the reasonableness of the attorneys' hourly rates and the number of hours expended;

(D) the reasonableness of the number of attorneys used;

(E) the attorneys' efforts to minimize fees;

(F) the reasonableness of the claims and defenses pursued by each side;

(G) vexatious or bad faith conduct;

(H) the relationship between the amount of work performed and the significance of the matters at stake;

(I) the extent to which a given fee award may be so onerous to the non-prevailing party that it would deter similarly situated litigants from the voluntary use of the courts;

(J) the extent to which the fees incurred by the prevailing party suggest that they had been influenced by considerations apart from the case at bar, such as a desire to discourage claims by others against the prevailing party or its insurer; and

(K) other equitable factors deemed relevant. If the court varies an award, the court shall explain the reasons for the variation.

(4) Upon entry of judgment by default, the plaintiff may recover an award calculated under subparagraph (b)(1) or its reasonable actual fees which were necessarily incurred, whichever is less. Actual fees include fees for legal work performed by an investigator, paralegal, or law clerk, as provided in subparagraph (b)(2).

(c) Motions for Attorney's Fees. A motion is required for an award of attorney's fees under this rule or pursuant to contract, statute, regulation, or law. The motion must be filed within 10 days after the date shown in the clerk's certificate of distribution on the judgment as defined by Civil Rule 58.1. Failure to move for attorney's fees within 10 days, or such additional time as the court may allow, shall be construed as a waiver of the party's right to recover attorney's fees. A motion for attorney's fees in a default case must specify actual fees.

(d) Determination of Award. Attorney's fees upon entry of judgment by default may be determined by the clerk. In all other matters the court shall determine attorney's fees.

(e) Equitable Apportionment Under AS 09.17.080. In a case in which damages are apportioned among the parties under AS 09.17.080, the fees awarded to the plaintiff under (b)(1) of this rule must also be apportioned among the parties according to their respective percentages of fault. If the plaintiff did not assert a direct claim against a third-party defendant brought into the action under Civil Rule 14(c), then

(1) the plaintiff is not entitled to recover the portion of the fee award apportioned to that party; and

(2) the court shall award attorney's fees between the third-party plaintiff and the third-party defendant as follows:

(A) if no fault was apportioned to the third-party defendant, the third-party defendant is entitled to recover attorney's fees calculated under (b)(2) of this rule;

(B) if fault was apportioned to the third-party defendant, the third-party plaintiff is entitled to recover under (b)(2) of this rule 30 or 20 percent of that party's actual attorney's fees incurred in asserting the claim against the third-party defendant.

(f) Effect of Rule. The allowance of attorney's fees by the court in conformance with this rule shall not be construed as fixing the fees between attorney and client.

(Adopted by SCO 5 October 9, 1959; amended by SCO 497 effective January 18, 1982; by SCO 712 effective September 15, 1986; by SCO 921 effective January 15, 1989; by SCO 1006 effective January 15, 1990; by SCO 1066 effective July 15, 1991; repealed and reenacted by SCO 1118am effective July 15, 1993; amended by SCO 1195 effective July 15, 1995; by SCO 1200 effective July 15, 1995; by SCO 1241 effective July 15, 1996; and by SCO 1281 effective August 7, 1997; by SCO 1340 effective January 15, 1998; and by SCO 1670 effective July 1, 2009)

NOTE to SCO 1118am: By adopting these amendments to Civil Rule 82, the court intends no change in existing Alaska law regarding the award of attorney's fees for or against a public interest litigant, see, e.g., Anchorage Daily News v. Anchorage School Dist., 803 P.2d 402, 404 (Alaska 1990); City of Anchorage v. McCabe, 568 P.2d 986, 993-94 (Alaska 1977); Gilbert v. State, 526 P.2d 1131, 1136 (Alaska 1974), or in the law that an award of full attorney's fees is manifestly unreasonable in the absence of bad faith or vexatious conduct by the non-prevailing party. See, e.g., Malvo v. J.C. Penney Co., 512 P.2d 575, 588 (Alaska 1973); Demoski v. New, 737 P.2d 780, 788 (Alaska 1987).

NOTE: AS 25.25.313(c), added by § 6 of ch. 57 SLA 1995 (the Uniform Interstate Family Support Act), has the effect of amending Civil Rule 82 by requiring the court to award costs and fees against a party who requests a hearing primarily for delay in a support proceeding listed in AS 25.25.301.

RABINOWITZ, Justice dissenting.

I dissent from the court's adoption of the amendments to Civil Rule 82 called for in [SCO 1118am.] In my view no compelling case has been made demonstrating the need for these changes.[FN1] Further, my judicial hunch is that these amendments to Civil Rule 82, in particular the new provisions reflected in (b)(3)(A) through (K), will unnecessarily and dramatically increase litigation over attorney's fees awards both in our trial courts as well as in this court. [FN2]

[1] In this regard I note that the Alaska Judicial Council is scheduled to conduct an in depth empirical study of the workings of Civil Rule 82. My preference is to await the results of the Council's study before deciding whether any of the current provisions of Rule 82 should be amended. Such a study should position this court to make a more informed assessment as to whether the current rule operates in a fashion which unjustly denies access to our courts. I further note that our Civil Rules Committee recently surveyed the Alaska Bar membership on discrete aspects of Civil Rule 82. A clear majority of those responding to the committee's questionnaire indicated: that Civil Rule 82 does not deter people of moderate means from filing valid claims; that the rule does not put excessive pressure on moderate income people to settle valid claims; and that the rule is needed to discourage frivolous litigation.

[2] Any attorney worth his or her salt will, pursuant to the expansive provisions of (b)(3)(A) through (K), request variations from the attorney's fees awards called for under either the monetary recovery schedule provisions of (b)(1), or the provisions of (b)(2) which apply where no money judgment is recovered by the prevailing party.

Note to SCO 1281: In 1997 the legislature amended AS 09.30.065 concerning offers of judgment. According to ch. 26, § 52, SLA 1997, the amendment to AS 09.30.065 has the effect of amending Civil Rules 68 and 82 by requiring the offeree to pay costs and reasonable actual attorney fees on a sliding scale of percentages in certain cases, by eliminating provisions relating to interest, and by changing provisions relating to attorney fee awards. According to § 55 of the session law, the amendment to AS 09.30.065 applies "to all causes of action accruing on or after the effective date of this Act." However, the amendments to Civil Rule 68 adopted by paragraph 5 of this order are applicable to all cases filed on or after August 7, 1997. See paragraph 17 of this order.

Note: Chapter 94 SLA 1998 adopts AS 46.03.761, which allows the Department of Environmental Conservation to impose administrative penalties against an entity that fails to construct or operate a public water supply system in compliance with state law or a term or condition imposed by the department. According to section 5 of the act, subsection (j) of this statute has the effect of amending Civil Rules 79 and 82 by allowing the recovery of full reasonable attorney fees and costs in an action to collect administrative penalties assessed under AS 46.03.761.

Note: Chapter 136 SLA 03 (HB 151) amends Chapters 10 and 45 of Title 9 of the Alaska Statutes relating to claims and court actions for defects in the design, construction, and remodeling of certain dwellings and limits on when certain court actions may be brought. According to Section 4(1) of the Act, AS 09.45.889(b) has the effect of amending Civil Rule 82 by allowing the court to deny attorney fees to a claimant in the situation described in AS 09.45.889(b), even if the claimant is the prevailing party.

Note: Chapter 92 SLA 2008 (HB 65) added a new chapter to AS 45 relating to security of personal information, effective July 1, 2009. According to section 6(b) of the Act, AS 45.48.200(a), 45.48.480(b), 45.48.560, and 45.48.750(d), enacted by section 4, have the effect of changing Civil Rule 82 by changing the criteria for determining the amount of attorney fees to be awarded to a party in an action under AS 45.48.200(a), 45.48.480(b), 45.48.560, or 45.48.750(d).

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Rule 83. Fees: Witnesses--Physicians-- Interpreters and Translators.

The payment of fees and mileage for witnesses, and for physicians and interpreters and translators, shall be governed by the rules for the administration of the courts.

(Adopted by SCO 5 October 9, 1959)

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PART XII. SPECIAL PROCEEDINGS

Rule 84. Change of Name.

(a) Petition. Every action for change of name shall be commenced by filing a verified petition entitled in the name of petitioner, showing the name which petitioner desires to adopt and setting forth the reasons for requesting a change of name.

(b) Notice of Application. The court by order shall set a date for hearing not less than 40 days after the date of the order. Unless otherwise ordered by the court based on the petitioner’s personal safety concerns, notice of the filing of the petition with a statement of the relief sought therein and the date of hearing thereon shall be continuously posted for four consecutive weeks prior to the date of the hearing on the Alaska Court System’s legal notice website. Proof of posting to the legal notice website shall be made as prescribed in Rule 4(e)(6)(A). In its discretion, the court by order may also require the posting or publication of the notice as prescribed in Rule 4(e)(3). Proof of publication shall be made as prescribed in Rule 4(e)(6)(B), (C) or (E).

(c) Judgment -- Notice -- Filing. If satisfied that there is no reasonable objection to the assumption of another name by petitioner, the court shall by judgment authorize petitioner to assume such other name after a time to be fixed in the judgment, which shall not be less than 30 days after the date shown in the clerk's certificate of distribution on the judgment. Except in cases where notice is not required under subsection (b), within 10 days after the date shown in the clerk's certificate of distribution on the judgment, a copy thereof shall be posted on the Alaska Court System’s legal notice website for one week. Proof of posting to the legal notice website shall be made as prescribed in Rule 4(e)(6)(A).

The court may also require publication of a copy of the judgment as provided in subdivision (b). Within 20 days after the date shown in the clerk's certificate of distribution on the judgment, proof of publication shall be filed with the clerk. The petitioner may then submit a certificate to be issued by the clerk stating that the judgment has been entered and that all requirements for posting a copy of the judgment have been met.

(d) Applicability. This rule shall not apply to restoration of a prior name sought in a complaint for divorce or in a petition for dissolution of marriage.

(e) Change of Name for Minor Child. An action for change of name for a minor child will be commenced by the filing of a verified petition in the name of a parent or guardian on behalf of the minor child, showing the name which the petitioner desires the child to assume and setting forth the reasons for requesting the change of name. No petition will be heard unless written consent to the petition is filed by both the child's legal parents and the child's legal guardian (if any), or unless proof of service is filed with the court showing that the child's parent(s) and legal guardian(s) have been served with a summons and a copy of the petition at least 30 days prior to the date set for hearing. Service of the petition and summons will be in accord with the provisions of these rules applicable to the service of a complaint and summons. The summons must advise the recipient of the date set for hearing on the petition.

If the court receives an objection to the proposed name change presented by a parent and/or legal guardian of the child prior to or at the time of the hearing on the proposed name change, the court shall consider the objection and shall only grant the name change if the court finds the name change to be in the best interest of the child. The court shall also consider the desires of a child old enough to express the same in determining whether a requested name change will be granted.

The requirements of (b) and (c) of this rule apply to a change of name proceeding brought under this section.

(Amended by SCO 49 effective January 1, 1963; by SCO 56 effective November 1, 1963; by SCO 252(2) effective September 22, 1976; by SCO 542 effective October 1, 1982; by SCO 554 effective April 4, 1983; by SCO 624 effective June 15, 1985; by SCO 671 effective June 15, 1986; by SCO 999 effective January 15, 1990; by SCO 1772 effective February 23, 2012; and by SCO 1834 effective October 15, 2014)

Note: A petitioner may file a motion or the court may act on its own motion under Administrative Rule 37.6 to have the case and case record made confidential based on the petitioner’s personal safety concerns. The petitioner or court may also request under Administrative Rule 40(b) or (c) that the presiding judge substitute pseudonyms for the petitioner’s current and requested names on the public index of cases.

Note: The Alaska Court System’s legal notice website, referenced in subsections (b) and (c) of this rule is found on the Alaska Court System Website at: http://www.courts.alaska.gov/.

Cross References

(a)CROSS REFERENCE: AS 09.55.010

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Rule 85. Forcible Entry and Detainer

(a) Practice and Procedure. In an action for the possession of any land, tenement or other real property brought under the forcible entry and detainer provisions of law, the practice and procedure shall be as in other civil actions, subject to the following:

(1) Complaint. The premises claimed shall be described in the complaint with such certainty that the defendant will be distinctly advised of their location so that possession thereof may be delivered according to that description. The complaint must contain a notice describing the circumstances under which the clerk may dismiss the case under subsection (a)(6) of this rule. This notice will be printed in the forcible entry and detainer complaint forms approved by the administrative director. If the plaintiff files an action without using the court form, the complaint must nonetheless contain a notice that is identical to that which appears in the court form. The notice shall serve as the actual notice to all parties that is required by paragraph (a)(6) of this rule.

(2) Summons. Summons shall be served not less than two days before the day of the eviction hearing. The date set for the eviction hearing shall be not more than 15 days from the date of filing of the complaint unless otherwise ordered by the court.

(3) Continuances. No continuance shall be granted for a longer period than 2 days, unless the defendant applying therefor shall give an undertaking to the adverse party, with sureties approved by the court, conditioned to the payment of the rent that may accrue if judgment is rendered against defendant.

(4) Appearance by Defendant. An appearance by a defendant at the eviction hearing is an appearance in the entire matter for purposes of Civil Rule 55(a).

(5) Service-How Made. A defendant cannot be served under Civil Rule 5 by mailing a copy of the document to the address from which the defendant was evicted unless the defendant's current mailing address and whereabouts are not readily ascertainable.

(6) Dismissal of Action for Want of Prosecution.

(A) By Clerk - Additional Notice to Parties Not Required. A forcible entry and detainer case may be dismissed by the clerk for want of prosecution without further notice to the parties and without further order if

(i) the case has been pending for more than 180 days from the date the complaint was filed;

(ii) no trial or hearing is scheduled;

(iii) no application for default judgment has been filed; and

(iv) the parties had actual notice that the case could be dismissed under this paragraph; actual notice of the procedure for dismissal of a forcible entry and detainer case shall be provided in all forcible entry and detainer complaints as provided in subsection (a)(1) of this rule.

(B) By Order of Court. The court on its own motion or on motion of a party to the action may enter a judgment of dismissal if the plaintiff fails to appear for a scheduled trial or hearing.

(C) Dismissal Without Prejudice. A case dismissed for want of prosecution under this rule is dismissed without prejudice unless otherwise ordered by the court. Any party may, as a matter of right, reopen a case that was dismissed for want of prosecution without refiling the action by making a request in writing to the clerk of court no later than one year after dismissal.

(b) Referral to District Courts for Trial. Any such action filed in the superior court may be referred by the court to a district court for trial when the amount does not exceed the jurisdiction of district court.

(Amended by SCO 49 effective January 1, 1963; amended by SCO 678 effective June 15, 1986; by SCO 739 effective August 28, 1986; by SCO 1461 effective April 15, 2002; and by SCO 1691 effective April 15, 2010)

Cross References

(a)(generally) CROSS REFERENCE: AS 09.45.070

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Rule 86. Habeas Corpus.

(a) Scope of Civil Rules. The procedure in an action for habeas corpus shall be governed by the rules governing the procedure in civil actions in the superior court to the extent that such rules are applicable.

(b) Complaint. The complaint shall be verified by the prisoner or by someone on the prisoner's behalf who shall be known as the plaintiff and shall state in substance as follows:

(1) That the person in whose behalf the writ is applied for (the prisoner) is restrained of liberty.

(2) The name of the prisoner, if known, or the prisoner's description.

(3) The name of the officer or person by whom the prisoner is so restrained, if known, or the officer's or person's description.

(4) The place of restraint, if known.

(5) That the action for habeas corpus by or on behalf of the prisoner is not prohibited by law.

(6) The cause or pretense of such restraint, according to the best of the knowledge and belief of the plaintiff.

(7) The reasons why the restraint is illegal.

(8) If the restraint is by virtue of any warrant, judgment, order or process, a copy thereof shall be attached as an exhibit, or an explanation of its absence shall be made in the complaint.

(9) That the legality of the restraint has not been already adjudged upon a prior writ of habeas corpus to the knowledge or belief of the plaintiff.

(c) Writ -- Order to Show Cause -- Warrant.

(1) Issuance Upon Application. Upon the presentation or filing of a complaint, the court (or judge) shall, unless it appears that the plaintiff is not entitled to that relief:

[a] Issue a writ of habeas corpus directed to the person having custody of the prisoner, or the person's superior, ordering the person or superior to answer the writ stating the authority for restraining the prisoner and to bring the person alleged to be restrained before the court (or judge) forthwith, or at a designated time and place; or

[b] Issue an order to show cause why the writ should not be issued, returnable as in [a] above; or

[c] Issue a warrant in lieu of habeas corpus.

(2) Issuance Without Application. Any judicial officer may issue a writ of habeas corpus, or an order to show cause, sua sponte whenever it appears that any person is illegally restrained. A writ issued by a district court judge or magistrate judge is returnable before a judge of the superior court.

(3) Duplicate Original Writs. Duplicate original writs or orders to show cause may be issued in any number required.

(d) Sufficiency of Writ. The writ or order to show cause shall not be disobeyed for any defect of form. It is sufficient (1) if the person having custody of the prisoner is designated simply as the person having custody of the prisoner, and (2) if the person restrained, or who is directed to be produced, is designated by name; or if that person's name is uncertain or unknown, if that person is described in any other way, so as to designate the person intended. Anyone served with the writ is deemed the person to whom it is directed.

(e) Service of Writ.

(1) Person to Be Served. The writ or order to show cause shall be served on the person having custody of the prisoner, who shall be known and designated as the defendant, in the manner prescribed in Rule 4. If the defendant cannot be found, or if the defendant does not have the prisoner in custody, the writ or order to show cause may be served upon anyone having the prisoner in custody, or that person's superior, in the manner and with the same effect as if that person or the superior had been made defendant in the action.

(2) Tender of Fees. To make the service of a writ of habeas corpus effective as to the production of the prisoner, the person making service shall tender to the person having custody of the prisoner, or that person's superior, the fees as follows:

[a] No fees need be tendered if the action is brought by the Attorney General or a prosecuting attorney, nor if the writ is issued by the judge on the judge's own motion.

[b] If the prisoner is in the custody of a public officer, the fees tendered shall be in a sum adequate to cover the cost of producing the prisoner and of returning the prisoner if remanded, said sum to be established by the judge upon the issuance of the writ and endorsed thereon by the judge.

[c] If the prisoner is in the custody of any other person, and if the judge allowing the writ so orders, the fees tendered shall be those established by the judge and endorsed on the writ, not to exceed the cost of producing and returning the prisoner.

[d] If the prisoner is not returned, the amount of the fee tendered to cover the cost of return shall be refunded to the owner.

(f) Return. Every person who serves or attempts to serve a writ or order to show cause shall make a return in accordance with the provisions of Rule 4(f). The execution or service and return of a warrant shall be governed by the provisions of Criminal Rule 4(c).

(g) Answer.

(1) Contents. The answer shall state plainly and unequivocally:

[a] Whether the defendant or person served then has, or at any time has had, the prisoner in custody, and if so, the authority and cause therefor; and

[b] If the prisoner has been transferred, to whom, when the transfer was made, and the reason and authority therefor.

[c] If the prisoner has been admitted to bail, the time of such admission to bail and the amount thereof.

[d] That the prisoner has not been produced as ordered for the reason that the tender of fees was not made or the amount tendered was inadequate, if such be the case.

(2) Exhibits. If the prisoner is detained by virtue of any judgment, order, warrant, or other written authority, a copy thereof shall be attached to the answer as an exhibit, and the original shall be produced and exhibited at the hearing.

(3) Verification. The answer shall be signed by the person answering and, except when the person is a sworn public officer and answers in the person's official capacity, it shall be verified by oath.

(h) Contempt. Neglect to produce the prisoner or to answer the writ or order to show cause in compliance with its terms shall constitute contempt.

(i) Controverting Answer. The plaintiff or the prisoner may, in a reply or at the hearing, controvert the answer under oath, to show either that the restraint of the prisoner was unlawful, or that the prisoner is entitled to discharge or other appropriate remedy.

(j) Hearing and Judgment. The court shall proceed in a summary manner to hear the matter and render judgment accordingly.

(k) Notice of Hearing Before Discharge. When the answer indicates that the prisoner is in custody on any process under which any other person has an interest in continuing the prisoner's restraint, no order may be made for the prisoner's discharge unless the person so interested, or that person's attorney, has had reasonable notice of the time and place of the hearing. When the answer indicates that the prisoner is detained upon a criminal accusation, the prisoner shall not be discharged until reasonable notice of the time and place of the hearing is given to the prosecuting attorney of the district within which the prisoner is detained or, if there is no prosecuting attorney within the district, to the Attorney General.

(l) Custody of Child. An order to show cause, and not a writ of habeas corpus, shall be issued initially if the action is brought by a parent, foster parent, or other relative of the child, to obtain custody of the child under the age of sixteen years from a parent, foster parent, or other relative of the child, the Commissioner of Health and Social Services, or any other person.

(m) Superseded By Post-Conviction Relief Procedure Under Criminal Rule 35.1. This rule does not apply to any post-conviction proceeding that could be brought under Criminal Rule 35.1. The court shall treat such a complaint as an application for post-conviction relief under Criminal Rule 35.1 and, if necessary, transfer the application to the court of appropriate jurisdiction for proceedings under that rule.

(n) Not a Substitute for Remedies in Trial Court or Direct Review. This remedy is not a substitute for nor does it affect any remedy incident to the proceedings in the trial court, or direct review of a sentence or conviction.

(Amended by SCO 49 effective January 1, 1963; by SCO 107 effective July 1, 1970; by SCO 457 effective March 15, 1981; by SCO 880 effective July 15, 1988; by SCO 1153 effective July 15, 1994; by SCO 1186 effective July 15, 1995; and by SCO 1829 effective October 15, 2014)

Cross References

(b) CROSS REFERENCE: AS 12.75.010; AS 12.75.020; AS 12.75.030

(c) (1) CROSS REFERENCE: AS 12.75.180; AS 12.75.190; AS 12.75.200

(e) (1) CROSS REFERENCE: AS 12.75.040

(g) (1) CROSS REFERENCE: AS 12.75.110

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Rule 87. Civil Arrest.

A motion for an order of arrest in a civil action shall be accompanied by affidavit setting out the facts supporting the ground for arrest. The order of arrest shall state the amount of bail. The arresting officer, at the time of arrest, shall deliver to the defendant copies of the order of arrest and all affidavits supporting the motion.

(Amended by SCO 49 effective January 1, 1963)

Cross References

CROSS REFERENCE: AS 09.40.120 -- AS 09.40.180

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Rule 88. Procedure for Claiming Delivery of Personal Property.

(a) Prejudgment Delivery of Personal Property to Plaintiff; Availability. When the plaintiff has commenced a civil action to recover possession of personal property, the plaintiff may make application to the court to have the property delivered to the plaintiff. The court may order the prejudgment seizure of the property in accordance with the provisions of this rule.

(b) Motion and Affidavit for Delivery. The plaintiff shall file a motion with the court requesting the delivery of personal property, together with an affidavit showing:

(1) A particular description of the property claimed, and if the property claimed is a portion of divisible property of uniform kind, quality and value, that such is the case, and the amount thereof which the plaintiff claims; and

(2) That the plaintiff is the owner of the property or lawfully entitled to its possession, and the facts and circumstances relating thereto; and

(3) The value of the property claimed; and if more than one article is claimed, the current value of each article; and

(4) That the property is in the possession of the defendant, and the facts and circumstances relating to such possession according to the plaintiff's best knowledge or belief; and

(5) That the prejudgment seizure is not sought and the action is not prosecuted to hinder, delay or defraud any other creditor of the defendant; and

(6) That the plaintiff has no information or belief that the defendant has filed any proceeding under the National Bankruptcy Act or has made a general assignment for the benefit of creditors, or, if any such proceeding has been terminated, that the claim of the plaintiff was not discharged in such proceeding.

The plaintiff or the plaintiff's attorney shall endorse in writing upon the motion attached to the affidavit a request that the property claimed be taken by a peace officer from the defendant and be delivered to the plaintiff.

(c) Notice of Motion; Pre-Seizure Hearing. Except as section (j) provides, the court may order prejudgment delivery of personal property to the plaintiff only after:

(1) The defendant is served with notice of the motion and a copy of the affidavit; and

(2) The defendant is given an opportunity for a judicial hearing to determine the necessity of and justification for the prejudgment seizure of the property. The hearing shall be held not less than three (3), nor more than seven (7) business days (exclusive of Saturdays, Sundays, and legal holidays) after the service of the notice of motion upon the defendant.

(3) The hearing shall be held before the court on the day specified and shall take precedence over all other matters not of a similar nature pending on that day. If the defendant does not appear at the hearing, in person or by counsel, the court, without taking further evidence, shall immediately order the prejudgment seizure of the property. The hearing shall be conducted in conformity with Civil Rule 77, except where the provisions of Rule 77 conflict with the specific requirements of the instant rule, in which case, the requirements of the instant rule shall control.

(d) Hearing; Burden of Proof. At the hearing the court shall require the plaintiff to establish by a preponderance of the evidence the probable validity of the plaintiff's claim to the property and the absence of any reasonable probability that a successful defense can be asserted by the defendant.

(e) Issuance of Order; Seizure. If at the hearing the court finds that the plaintiff has met the burden of proof as set forth in paragraph (d) of this rule, the court shall issue an order prescribing the written undertaking, with sufficient sureties, to be provided by the plaintiff and directing a peace officer to seize and take into custody the property described in the affidavit upon the furnishing of the undertaking by the plaintiff.

(f) New or Additional Undertaking. The court at any time may require the giving of a new or additional undertaking to protect the interest of the defendant, the peace officer, or any party who intervenes, if good reason is shown that a new or additional bond is necessary.

(g) Sureties on Undertaking. The qualifications of sureties and their justification shall be as prescribed by these rules.

(h) Return by Peace Officer. The peace officer shall file a return with the court promptly and in any event within 20 days after the taking of the property from the defendant. Such return shall contain an inventory of the property taken, a statement of the claims, if any, by persons other than the plaintiff, and the name of the person to whom the property has been delivered. If the property is not taken, the peace officer shall promptly make a return to the court stating the fact and giving the reasons therefor.

(i) Defendant's Security. No order for prejudgment seizure of personal property may issue, or the peace officer shall redeliver to the defendant any property seized pursuant to the hearing, when the defendant provides a written undertaking with sufficient sureties as ordered by the court. The court may take into account a defendant's indigency, and may, in its discretion, permit the defendant to establish security by means other than the posting of bonds or the provision of a written undertaking. Such alternative means may include an installment payment arrangement or any other mechanism which the court deems just.

(j) Ex Parte Prejudgment Delivery of Personal Property. The court may issue a prejudgment order for delivery of personal property in an ex parte proceeding upon the plaintiff's motion, affidavit, and undertaking only in the following extraordinary situations:

(1) Imminence of Defendant Concealing, Destroying or Conveying the Property. The court may issue an ex parte order for delivery if the plaintiff establishes the probable validity of the plaintiff's claim for possession of the property, and if the plaintiff states in the affidavit specific facts sufficient to support a judicial finding of one of the following circumstances:

(i) The defendant is concealing, or about to conceal, the property; or

(ii) The defendant is about to destroy the property; or

(iii) The defendant is causing, or about to cause, the property to be removed beyond the limits of the state; or

(iv) The defendant is about to convey or encumber the property; or

(v) The defendant is otherwise disposing, or about to dispose, of the property in a manner so as to defraud the defendant's creditors, including the plaintiff.

(2) Defendant's Waiver of Right to Pre-Seizure Hearing. The court may issue an ex parte order for delivery if the plaintiff establishes the probable validity of the plaintiff's claim for possession of the property, and if the plaintiff accompanies the affidavit and motion with a document signed by the defendant voluntarily, knowingly and intelligently waiving the defendant's constitutional right to a hearing before prejudgment seizure of the property.

(3) The Government as Plaintiff. The court may issue an ex parte order for delivery when the possessory action and claim for delivery is brought by a government agency (state or federal), provided the government-plaintiff demonstrates that an ex parte seizure is necessary to protect an important governmental or general public interest.

(k) Execution, Duration, and Vacation of Ex Parte Orders. When the peace officer executes an ex parte delivery order, the peace officer shall at the same time serve on the defendant copies of the plaintiff's affidavit, motion and undertaking, and the order. No ex parte order shall be valid for more than seven (7) business days (exclusive of Saturdays, Sundays, and legal holidays), unless the defendant waives the right to a pre-seizure hearing in accordance with subsection (j) (2) of this rule, or unless the defendant consents in writing to an additional extension of time for the duration of the ex parte order. The defendant may at any time after service of the order request an emergency hearing at which the defendant may refute the special need for the seizure and the validity of the plaintiff's claim for possession of the property.

(l) Duration and Vacation of Prejudgment Seizure Orders Issued Pursuant to Hearing. A prejudgment seizure order issued pursuant to a hearing provided for in section (c) of this rule shall unless sooner released or discharged, cease to be of any force or effect and the property seized shall be released from the operation of the order at the expiration of six (6) months from the date of the issuance of the order, unless a notice of readiness for trial is filed or a judgment is entered against the defendant in the action in which the order was issued, in which case the order shall continue in effect until released or vacated after judgment as provided in these rules. However, upon motion of the plaintiff, made not less than ten (10) nor more than sixty (60) days before the expiration of such period of six (6) months, and upon notice of not less than five (5) days to the defendant, the court in which the action is pending may, by order filed prior to the expiration of the period, extend the duration of the order for an additional period or periods as the court may direct, if the court is satisfied that the failure to file the notice of readiness is due to the dilatoriness of the defendant and was not caused by any action of the plaintiff. The order may be extended from time to time in the manner herein prescribed.

(Amended by SCO 49 effective January 1, 1963; by SCO 156 effective December 8, 1972; by SCO 416 effective August 1, 1980; by SCO 1153 effective July 15, 1994; and by SCO 1435 effective October 15, 2001)

Cross References

(b) CROSS REFERENCE: AS 09.40.260

(e) CROSS REFERENCE: AS 09.40.270 -- AS 09.40.300

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Rule 89. Attachment.

(a) Prejudgment Attachment; Availability. After a civil action is commenced, the plaintiff may apply to the court to have the property of the defendant attached under AS 09.40.010 -- .110 as security for satisfaction of a judgment that may be recovered. The court may issue the writ of attachment in accordance with the provisions of this rule. However, no writ may be issued unless the plaintiff has provided a written undertaking with sufficient sureties as ordered by the court.

Any party bringing a claim against another party may utilize prejudgment attachment procedures and is considered a plaintiff for purposes of this rule.

(b) Motion and Affidavit for Attachment. The plaintiff shall file a motion with the court requesting the writ of attachment, together with an affidavit showing:

(1) That the action is one upon an express or implied contract for the payment of money, and the facts and circumstances relating thereto; and

(2) That the sum for which the attachment is asked is an existing debt due and owing from the defendant to the plaintiff, over and above all legal setoffs and counterclaims, and the facts and circumstances relating thereto; and

(3) That the payment of such debt has not been secured by any mortgage, lien or pledge upon real or personal property, or if so secured, that the value of the security (specifying its value) is insufficient to satisfy any judgment that may be recovered by the plaintiff in the action; and

(4) That the attachment is not sought nor the action prosecuted to hinder, delay, or defraud any other creditor of the defendant; and

(5) That the plaintiff has no information or belief that the defendant has filed any proceeding under the National Bankruptcy Act or has made a general assignment for the benefit of creditors, or, if any such proceeding has been terminated, that the claim of the plaintiff was not discharged in such proceeding.

(c) Notice of Motion; Pre-Attachment Hearing. Except as section (m) provides, the court may issue the writ of attachment only after:

(1) The defendant is served with notice of the motion and a copy of the affidavit; and

(2) The defendant is given an opportunity for a judicial hearing to determine the necessity of and justification for the prejudgment attachment of the property. The hearing shall be held not less than three (3), nor more than seven (7) business days (exclusive of Saturdays, Sundays and legal holidays) after the service of the notice of motion upon the defendant.

(3) The hearing shall be held before the court on the days specified and shall take precedence over all other matters not of a similar nature pending on that day. If the defendant does not appear at the hearing, in person or by counsel, the court, without taking further evidence, shall immediately order the prejudgment attachment of the property. The hearing shall be conducted in conformity with Civil Rule 77, except where the provisions of Rule 77 conflict with the specific requirements of the instant rule, in which case, the requirements of the instant rule shall control.

(d) Hearing; Burden of Proof. At the hearing the court shall require the plaintiff to establish by a preponderance of the evidence the probable validity of the plaintiff's claim for relief in the action and the absence of any reasonable probability that a successful defense can be asserted by the defendant.

(e) Issuance of Writ. If at the hearing the court finds that the plaintiff has met his burden of proof set forth in section (d) of this rule, the court shall order that a writ of attachment be issued unless the defendant posts security as provided in section (j). The writ shall be directed to a peace officer and shall require the peace officer to attach and safely keep property of the defendant not exempt from execution sufficient to satisfy the plaintiff's demand (the amount of which shall be stated in conformity with the complaint), together with costs and expenses. Several writs may be issued at the same time and delivered to different peace officers, provided the total amount of the several writs does not exceed the plaintiff's claim. Additional writs may be issued where previous writs have been returned unexecuted, or executed in an amount insufficient to satisfy the full amount of the plaintiff's claim.

(f) Execution of Writ. The peace officer shall execute the writ without delay, as follows:

(1) Real property shall be attached by leaving a certified copy of the writ with the occupant of such property, or if there be no occupant, then in a conspicuous place on such property.

(2) Personal property capable of manual delivery to the peace officer, and not in the possession of a third party, shall be attached by the peace officer by taking it into custody.

(3) Other personal property shall be attached by leaving a certified copy of the writ, and a notice specifying the property attached, with the person having possession of same, or if it be a debt, then with the debtor.

(g) New or Additional Undertaking. The court at any time may require the giving of a new or additional undertaking to protect the interests of the defendant, the peace officer, or any party who intervenes, if good reason is shown that a new or additional bond is necessary.

(h) Sureties on Undertaking. The qualifications of sureties and their justification shall be as prescribed by these rules.

(i) Return by Peace Officer. The peace officer shall note upon the writ of attachment the date of its receipt. When the writ has been executed, the peace officer shall promptly return it to the clerk with the officer's proceedings endorsed thereon, including a full inventory of any property attached. If the writ cannot be executed, the peace officer shall promptly return it to the clerk stating thereon the reasons why it could not be executed.

(j) Defendant's Security. No writ of attachment may issue, or the peace officer shall redeliver to the defendant any property seized pursuant to the hearing, when the defendant provides a written undertaking with sufficient sureties as ordered by the court. The court may take into account a defendant's indigency, and may, in its discretion, permit the defendant to establish security by means other than the posting of bonds or the provision of a written undertaking. Such alternative means may include an installment payment arrangement or any other mechanism which the court deems just.

(k) Wages of Defendant. No part of the defendant's wages shall be attached prior to entry of final judgment except as permitted under 15 U.S.C. § 1673, AS 09.38.030 -- 09.38.050, AS 09.38.065 and AS 09.40.030.

(l) Garnishee Proceedings.

(1) Order of Appearance -- Service. When a person is ordered to appear before the court to be examined as to any property or debt held by the person belonging to a defendant, such person shall be known as the garnishee. The order shall state the time and place where the garnishee is to appear, shall be served upon the garnishee and return of service made in the manner provided for service of summons and return thereof in Rule 4.

(2) Failure to Appear -- Default. When a garnishee fails to appear in compliance with the order, the court on motion may compel the garnishee to do so.

(3) Discovery. After entry of the order mentioned in subsection (1), plaintiff may utilize the rules of discovery under the supervision of the court with respect to all matters relating to property of the defendant believed to be in the possession of the garnishee. The consequences of the garnishee's failure or refusal to make discovery shall be governed by these rules.

(4) Trial of Issues of Fact. Issues of fact arising between the plaintiff and the garnishee shall be resolved and disposed of in accordance with these rules as in the case of issues of fact arising between plaintiff and defendant. Witnesses, including the defendant and garnishee, may be required to appear and testify as upon the trial of an action.

(5) Judgment Against Garnishee. If it shall be found that the garnishee, at the time of service of the writ of attachment and notice, had any property of the defendant liable to attachment beyond the amount admitted in the garnishee's statement, or in any amount if a statement is not furnished, judgment may be entered against the garnishee for the value of such property in money. At any time before judgment, the garnishee may be discharged from liability by delivering, paying or transferring the property to the peace officer.

(6) Order Restraining Garnishee. At the time of the application by plaintiff for the order provided for in subsection (1), and at any time thereafter and prior to the entry of judgment against the garnishee, the court may enter an order restraining the garnishee from paying, transferring, or in any manner disposing of or injuring any of the property of the defendant alleged by the plaintiff to be in the garnishee's possession or control, or owing by the garnishee to the defendant. Disobedience of such order may be punished as a contempt.

(7) Execution. Execution may issue upon a judgment against a garnishee as upon a judgment between plaintiff and defendant, and costs and disbursements shall be allowed and recovered in like manner.

(m) Ex Parte Attachments. The court may issue a writ of attachment in an ex parte proceeding based upon the plaintiff's motion, affidavit, and undertaking only in the following extraordinary situations:

(1) When Defendant Non-Resident. In an action upon an express or implied contract against a defendant not residing in the state, the court may issue an ex parte writ of attachment only when necessary to establish jurisdiction in the court. To establish necessity, the plaintiff must demonstrate that personal jurisdiction over the defendant is not readily obtainable under AS 09.05.015.

(2) Imminence of Defendant Avoiding Legal Obligations. The court may issue an ex parte writ of attachment if the plaintiff establishes the probable validity of the plaintiff's claim for relief in the main action, and if the plaintiff states in the affidavit specific facts sufficient to support a judicial finding of one of the following circumstances:

(i) The defendant is fleeing, or about to flee, the jurisdiction of the court; or

(ii) The defendant is concealing the defendant's whereabouts; or

(iii) The defendant is causing, or about to cause, the defendant's property to be removed beyond the limits of the state; or

(iv) The defendant is concealing, or about to conceal, convey or encumber property in order to escape the defendant's legal obligations; or

(v) The defendant is otherwise disposing, or about to dispose, of property in a manner so as to defraud the defendant's creditors, including the plaintiff.

(3) Defendant's Waiver of Right to Pre-Attachment Hearing. The court may issue an ex parte writ of attachment if the plaintiff establishes the probable validity of the plaintiff's claim for relief in the main action, and if the plaintiff accompanies the affidavit and motion with a document signed by the defendant voluntarily, knowingly and intelligently waiving the constitutional right to a hearing before prejudgment attachment of the property.

(4) The Government as Plaintiff. The court may issue an ex parte writ of attachment when the motion for such writ is made by a government agency (state or federal), provided the government-plaintiff demonstrates that such ex parte writ is necessary to protect an important governmental or general public interest.

(n) Execution, Duration, and Vacation of Ex Parte Writs of Attachment. When the peace officer executes an ex parte writ of attachment, the peace officer shall at the same time serve on the defendant copies of the plaintiff's affidavit, motion and undertaking, and the order. No ex parte attachment shall be valid for more than seven (7) business days (exclusive of Saturdays, Sundays, and legal holidays), unless the defendant waives the right to a pre-attachment hearing in accordance with subsection (m) (3) of this rule, or unless the defendant consents in writing to an additional extension of time for the duration of the ex parte attachment, or the attachment is extended, after hearing, pursuant to section (e) of this rule. The defendant may at any time after service of the writ request an emergency hearing at which the defendant may refute the special need for the attachment and validity of the plaintiff's claim for relief in the main action.

(o) Discharge of Attachment Where Perishable Goods Have Been Sold. Whenever the defendant shall have appeared in the action, the defendant may apply to the court for an order to discharge the attachment on perishable goods which have been sold. If the order be granted, the peace officer shall deliver to the defendant all proceeds of sales of perishable goods, upon the giving by the defendant of the undertaking provided for in section (j).

(p) Duration and Vacation of Writs of Attachment Issued Pursuant to Hearing. A writ of attachment issued pursuant to a hearing provided for in section (c) of this rule shall unless sooner released or discharged, cease to be of any force or effect and the property attached shall be released from the operation of the writ at the expiration of six (6) months from the date of the issuance of the writ unless a notice of readiness for trial is filed or a judgment is entered against the defendant in the action in which the writ was issued, in which case the writ shall continue in effect until released or vacated after judgment as provided in these rules. However, upon motion of the plaintiff, made not less than ten (10) nor more than sixty (60) days before the expiration of such period of six (6) months, and upon notice of not less than five (5) days to the defendant, the court in which the action is pending may, by order filed prior to the expiration of the period, extend the duration of the writ for an additional period or periods as the court may direct, if the court is satisfied that the failure to file the notice of readiness is due to the dilatoriness of the defendant and was not caused by any action of the plaintiff. The order may be extended from time to time in the manner herein prescribed.

(q) The administrative director may adopt alternative procedures from those set out in this rule in order to allow electronic executions pursuant to Civil Rule 69(h).

(Amended by SCO 49 effective January 1, 1963; by SCO 156 effective December 8, 1972; by SCO 417 effective August 1, 1980; by SCOs 635, 636 and 637 effective September 15, 1985; by SCO 820 effective August 1, 1987; by SCO 853 effective January 15, 1988; by SCO 1135 effective July 15, 1993; by SCO 1153 effective July 15, 1994; and by SCO 1683 effective nunc pro tunc to May 24, 2008)

Note: Chapter 41 SLA 2008 (HB 166), effective May 24, 2008, enacted changes relating to execution upon permanent fund dividends. According to section 5 of the Act, AS 43.23.065 as amended by sections 2 and 3 of the Act, has the effect of amending Civil Rule 89 by allowing a civilian process server licensed by the commissioner of public safety to execute upon a permanent fund dividend by electronic means in accordance with regulations adopted by the Department of Revenue, and by establishing how the commissioner of revenue shall deliver the portion of the dividend executed upon to the court.

Cross References

(b) CROSS REFERENCE: AS 09.40.010

(k) CROSS REFERENCE: AS 09.40.010

(m) (1) CROSS REFERENCE: AS 09.40.060

(n) (1) CROSS REFERENCE: AS 09.40.010

(p) CROSS REFERENCE: AS 09.40.070

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Rule 90. Contempts.

(a) Contempt in Presence of Court. A contempt may be punished summarily if the judge certifies that the judge saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.

(b) Other Contempts -- Proceedings -- Parties. For every contempt other than that specified in subdivision (a) of this rule, upon a proper showing on ex parte motion supported by affidavits, the court shall either order the accused party to show cause at some reasonable time, to be therein specified, why the accused party should not be punished for the alleged contempt, or shall issue a bench warrant for the arrest of such party. Such proceeding may be commenced and prosecuted in the same action or in an independent proceeding either by the state, or by the aggrieved party whose right or remedy in an action has been defeated or prejudiced or who has suffered a loss or injury by the act constituting a contempt.

(c) Party in Custody. If the party charged with contempt is imprisoned or otherwise in custody under any judicial order or process, the court may require such party to be brought before it, and may make such provision as is appropriate for the disposition and custody of the party.

(d) Bond for Appearance. The court may permit the giving of a bond in lieu of arrest. In such case the court shall state in the bench warrant the amount of the bond and the time when the party charged with contempt must appear before the court. Such party shall be discharged from arrest upon delivering to the officer serving the warrant a bond in the amount stated in the warrant, executed by sufficient surety, and conditioned upon such party appearing before the court at the time stated and abiding the orders of the court. The amount recovered in a proceeding to enforce liability on the bond shall be applied first as compensation to the aggrieved party for damages resulting from the act constituting the contempt, with costs of the proceeding, and the residue, if any, shall become the property of the state and be deposited with the court.

(e) Return. Proof of service of an order to show cause or execution of a bench warrant shall be governed by Rule 4(f). Any bond delivered to an officer making service shall be filed by the officer with the court.

(f) Hearing and Determination. When the defendant has been brought before the court or has appeared, the court or judicial officer shall proceed to investigate the charge by examining the defendant and witnesses for or against the defendant. Upon the evidence so taken, the court or judicial officer shall determine the defendant's guilt or innocence of the contempt charged.

(Amended by SCO 49 effective January 1, 1963; amended by SCO 1153 effective July 15, 1994)

Cross References

CROSS REFERENCE: AS 09.50.010 -- AS 09.50.060

(b) CROSS REFERENCE: AS 09.50.030

(d) CROSS REFERENCE: AS 09.50.040; AS 09.50.060

(f) CROSS REFERENCE: AS 09.50.030

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Rule 90.1. Dissolution of Marriage, Divorce, and Legal Separation Actions.

(a) Dissolution of Marriage.

(1) Commencement of Action. An action for dissolution of marriage under AS 25.24.200 .260 shall be commenced by the filing of a petition in superior court containing the recitations required by statute. The petition may not be filed more than 60 days after the date of the signature of the first person signing the petition.

(2) Verification. The petition shall be signed and verified by both petitioners if the petition is filed by husband and wife together or by the petitioner filing the action if filed separately.

(3) Form of Petition. The petition may be filed on forms approved by the supreme court. Information may be inserted on the form in legible handwriting.

(b) Divorce Actions -- Corroborating Witnesses Not Required. No corroborating witnesses as to legal residence shall be required in any divorce action unless ordered by the court; provided however, that the evidence of such residence shall be specific as to time, place, and manner of residence, and to the pertinent facts in the knowledge of the party attending to corroborate such residence.

(c) Hearing of Divorce and Dissolution Cases. Unless otherwise ordered upon good cause shown, no divorce or dissolution action shall be tried or heard on the merits within thirty days of the filing of the complaint.

(d) Divorce Actions Discovery and Disclosure. Discovery and disclosure in divorce actions is governed by Civil Rule 26.1.

(e) Divorce Actions -- Property Division Table. In divorce cases involving property division disputes, and unless otherwise ordered by the court, the parties shall file and serve the information required by this paragraph 5 days before trial is scheduled to begin. The required information consists of:

(1) a list, including a brief description of all assets and liabilities of the parties, whether owned jointly or individually;

(2) whether the party asserts each asset or liability is marital property, separate property of the husband, or separate property of the wife;

(3) the value of each asset and liability; and

(4) the proposed disposition, if any, of each asset or liability.

(f) Confidential Information.

(1) Social Security Numbers. Social security numbers, when required, shall not become part of the public record and shall be provided to the court confidentially as follows:

(A) A petition for dissolution or a complaint and answer for divorce, custody, legal separation, or annulment must be accompanied by an information sheet stating the name, date of birth, and social security number of each party to the action and each child who is or may be subject to a child support order in the action, to the extent known. The information sheet is confidential and shall not be considered part of the public record. The clerk of court shall provide a copy of the confidential information sheet to the Child Support Services Division upon request or whenever the court provides a child support order to a child support agency as required by state law. The clerk of court may also disclose the social security numbers on the confidential information sheet to the Bureau of Vital Statistics upon entry of a decree of divorce, dissolution, legal separation, or annulment of marriage, as required by state law. Further disclosure shall be authorized by court order only upon a showing of good cause.

(B) Once a complete confidential information sheet has been submitted to the court listing names, dates of birth, and social security numbers as required, the parties shall omit or redact social security numbers from documents subsequently filed in the action unless otherwise ordered by the court.

(C) A person whose interest in confidentiality may be adversely affected by disclosure of a social security number on a document filed in an action may move for an order requiring (i) the social security number to be redacted or the document to be treated as confidential, if the document has already been filed with the social security number included, or (ii) the document to be filed with the social security number redacted, if the document has not yet been filed.

(2) Financial Account Numbers. Unless otherwise ordered by the court, financial account numbers, when required under subsection (e) of this rule or when submitted in support of a motion, need not be provided in full. To protect against public disclosure of sensitive financial information, partial account numbers may be provided, as follows:

(A) a party may identify any credit card, bank card, or debit card account by using only the last four digits of the account number and the name of the issuing institution;

(B) a party may identify any bank, credit union, or other financial institution account by using only the last three digits of the account number and the name of the financial institution; and

(C) a person whose interest in confidentiality may be adversely affected by disclosure of a financial account number on a document filed in an action may move for an order requiring (i) the financial account number to be redacted or the document to be treated as confidential, if the document has already been filed with the financial account number included, or (ii) the document to be filed with the financial account number redacted, if the document has not yet been filed.

(g) Qualified Domestic Relations Orders. The party submitting a proposed Qualified Domestic Relations Order, or any similar order requiring the social security number of the beneficiary and alternate payee, shall submit a duplicate of the original proposed order with the social security number of the beneficiary and alternate payee redacted. The original proposed order is confidential and shall not be considered part of the public record. Only the redacted duplicate shall become part of the public case file.

(h) Applicability. Subsections (f) and (g) of this rule apply to documents filed with the court on or after October 15, 2006.

(i) Action for Divorce, Dissolution, or Annulment Filed After Action for Legal Separation.

(1) Notice of Legal Separation Action. A divorce, dissolution, or annulment action that is filed after the filing of an action for legal separation must include notice of the prior action.

(2) Consolidation of Cases. The consolidation of a divorce, dissolution, or annulment action with a legal separation action previously filed in Alaska is governed by AS 25.24.430 and Civil Rule 42(a).

(j) Action for Legal Separation – Commencement. An action for legal separation under AS 25.24.400-.460 is commenced by the filing of a complaint in the superior court.

(Added by SCO 252(1) effective September 22, 1976; amended by SCO 265 effective January 1, 1977; by SCO 370 effective August 1, 1979; by SCO 717 effective September 15, 1986; by SCO 805 effective August 1, 1987; by SCO 975 effective July 15, 1989; by SCO 1172 effective July 15, 1995; by SCO 1266 effective July 15, 1997; by SCO 1295 effective January 15, 1998; by SCO 1325 effective July 15, 1998; by SCO 1595 effective October 15, 2006; and by SCO 1596 effective October 15, 2006)

NOTE: Sections 41, 43, 45, and 46 of chapter 87 SLA 1997 amend AS 25.20.050(n), AS 25.24.160(d), AS 25.24.210(e), and AS 25.24.230(i), respectively, to require that an order or acknowledgement of paternity, a divorce decree, a petition for dissolution of marriage, and a dissolution decree include the social security number of each party to the action and each child whose rights are being addressed. According to § 151 of the Act, these provisions have the effect of amending Civil Rules 52, 58, 78, and 90.1 by requiring the court to include social security numbers, if ascertainable, of parties and children in certain petitions, pleadings, and judgments.

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Rule 90.2. Settlement and Judgments in Favor a Minor.

(a) Approval of Settlement of Claims on Behalf of Minors.

(1) Approval. A parent or guardian of a minor who has a claim against another person has the power to execute a full release or a covenant not to sue, or to execute a stipulation for entry of judgment on such claim. However, before such a document is effective, it must be approved by the court upon the filing of a petition or motion.

(2) Petition or Motion. A petition or motion for court approval of a minor's settlement under this rule must state the date of birth of the minor, the relationship between the moving party and the minor, the circumstances giving rise to the claim, the amount of any applicable liability insurance, and the basis for determining that the settlement is fair and reasonable. If the settlement arises from personal injuries to the minor, the petition or motion must describe the extent of the injuries, the medical treatment provided and the probable future course of treatment. If the settlement arises from the wrongful death or injury of another person, the petition or motion must describe the relationship between the other person and the minor and state whether the amount of the settlement is consistent with applicable state law.

(3) Attorneys' Fees and Costs. The court shall approve any attorneys' fees and costs that are to be paid from the settlement proceeds when the minor claimant is represented by counsel.

(4) Hearing. The court may approve the minor's settlement without a hearing if the settlement proceeds, after attorney's fees and costs are deducted, do not exceed $25,000. When a hearing on the petition or motion is held, the court may require the presence of any person that has information concerning the minor's claim, the fairness of the settlement or any related matter.

(5) Termination of Minor's Rights. No instrument executed under this rule is effective to terminate a minor's interests until such funds are paid as directed by the court.

(b) Disbursement of Proceeds.

(1) Order Directing Payment of Expenses, Costs and Fees. The court shall order that reasonable expenses (medical or otherwise, including reimbursement to a parent, guardian or conservator), costs and attorney's fees be paid from the settlement.

(2) Disposition of Remaining Balance. The court shall order that the remaining balance of the settlement, including any future payments, be disposed of in a manner which benefits the best interests of the minor. Dispositions which may be allowed include:

(A) ordering the settlement to be held by a parent or guardian for the benefit of the minor if the remaining balance of the settlement does not exceed $10,000;

(B) ordering that a formal trust be established for the benefit of the minor;

(C) ordering the appointment of a conservator to hold the proceeds of the settlement for the benefit of the minor;

(D) ordering that the proceeds of the settlement be deposited in a federally insured financial institution in an account from which withdrawal is not permitted without authority of the court; or

(E) ordering that the proceeds of the settlement be transferred to a custodian for the benefit of the minor under the Alaska Uniform Transfers to Minors Act (commencing with AS 13.46.010).

(3) Standards for Disbursement of Proceeds. The person or institution with authority under subparagraph (b) (2) may authorize disbursement of the settlement proceeds:

(A) for the support and education of the minor if the settlement proceeds are the result of the death or disability of another person;

(B) for the medical bills, special education or other costs related to the minor's injuries if the settlement proceeds are the result of injuries to the minor; or

(C) for any payment in the best interests of the minor after consideration of the benefit to the minor, the resources of the parents or guardian, and the amount of remaining settlement proceeds.

(c) Probate Master.

A master appointed to hear probate proceedings has the authority under this rule to:

(1) conduct the hearing set forth in paragraph (a) (4) and recommend to the court that the settlement be approved; (2) receive proof that the proceeds have been disposed of as set forth in subparagraph (b) (2); and (3) issue orders approving the withdrawal of funds pursuant to subparagraph (b) (2) (D).

(d) Disbursement of Proceeds Resulting from Judgment.

Proceeds resulting from a judgment in favor of a minor must be disbursed as set forth in paragraph (b).

(Added by SCO 835 effective August 1, 1987; amended by SCO 1106 effective January 15, 1993)

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Rule 90.3. Child Support Awards.

(a) Guidelines--Primary Physical Custody. A child support award in a case in which one parent is awarded primary physical custody as defined by paragraph (f) will be calculated as an amount equal to the adjusted annual income of the non-custodial parent multiplied by a percentage specified in subparagraph (a)(2).

(1) Adjusted annual income as used in this rule means the parent's total income from all sources minus:

(A) mandatory deductions such as:

(i) federal, state, and local income tax,

(ii) Social Security tax or the equivalent contribution to an alternate plan established by a public employer, and self-employment tax,

(iii) Medicare tax,

(iv) mandatory union dues,

(v) mandatory contributions to a retirement or pension plan;

(B) voluntary contributions to a retirement or pension plan or account in which the earnings are tax-free or tax-deferred, except that the total amount of these voluntary contributions plus any mandatory contributions under item (a)(1)(A)(v) above may not exceed 7.5% of the parent's gross wages and self-employment income;

(C)child support and spousal support payments arising from prior relationships which are required by other court or administrative proceedings and actually paid; however, the amount deducted for child support under this item may not exceed the support amount calculated under subparagraph (a)(2);

(D) in-kind child support for children from prior relationships in the primary or shared physical custody of the parent:

(i) for primary custody, the amount calculated under subparagraph (a)(2); or

(ii) for shared custody, the amount calculated under subparagraph (a)(2), multiplied by the percentage of time that parent has physical custody of the prior children; however, the total amount deducted under this sub-item and any deduction for the same children under item (a)(1)(C) may not exceed the amount calculated under subparagraph (a)(2); and

(E) work-related child care expenses for the children who are the subject of the child support order.

(2) The percentage by which the non-custodial parent's adjusted income must be multiplied in order to calculate the child support award is:

(A) 20% (.20) for one child;

(B) 27% (.27) for two children;

(C) 33% (.33) for three children; and

(D) an extra 3% (.03) for each additional child.

(3) The court may allow the obligor parent to reduce child support payments by up to 75% for any period in which the obligor parent has extended visitation of over 27 consecutive days. The order must specify the amount of the reduction which is allowable if the extended visitation is exercised.

(4) Potential Income. The court may calculate child support based on a determination of the potential income of a parent who voluntarily and unreasonably is unemployed or underemployed. A determination of potential income may not be made for a parent who is physically or mentally incapacitated, or who is caring for a child under two years of age to whom the parents owe a joint legal responsibility. Potential income will be based upon the parent's work history, qualifications, and job opportunities. The court also may impute potential income for non-income or low income producing assets.

(b) Shared, Divided, and Hybrid Physical Custody.

(1) Shared Physical Custody. A child support award in a case in which the parents are awarded shared physical custody as defined by paragraph (f) will be calculated by:

(A) Calculating the annual amount each parent would pay to the other parent under paragraph (a) assuming the other parent had primary custody. In this calculation the income limit in subparagraph (c)(2) and the minimum support amount in subparagraph (c)(3) apply.

(B) Multiplying this amount for each parent by the percentage of time the other parent will have physical custody of the children. However, if the court finds that the percentage of time each parent will have physical custody will not accurately reflect the ratio of funds each parent will directly spend on supporting the children, the court shall vary this percentage to reflect its findings.

(C) The parent with the larger figure calculated in the preceding subparagraph is the obligor parent and the annual award is equal to the difference between the two figures multiplied by 1.5. However, if this figure is higher than the amount of support which would be calculated under paragraph (a) assuming primary custody, the annual support is the amount calculated under paragraph (a).

(D) The child support award is to be paid in 12 equal monthly installments except as follows:

(i) if shared custody is based on the obligor parent having physical custody for periods of 30 consecutive days or more, the total annual award may be paid in equal installments over those months in which the obligor parent does not have physical custody; or

(ii) if the obligor parent's income is seasonal, the court may order unequal monthly support payments as provided in subparagraph (c)(5).

(E) The child support order must state that failure to exercise sufficient physical custody to qualify for shared physical custody under this rule is grounds for modification of the child support order. Denial of visitation by the custodial parent is not cause to increase child support.

(2) Divided Physical Custody. A child support award in a case in which the parents have divided custody is calculated, first, by determining what each parent would owe the other for children in that parent's primary physical custody under paragraph (a), taking into account the income limit in subparagraph (c)(2) and the minimum support amount in subparagraph (c)(3), and offsetting those amounts. Second, because divided custody is an "unusual circumstance," the court must consider whether this support amount should be varied under subparagraph (c)(1).

(3) Hybrid Physical Custody. A child support award in a case in which the parents have hybrid custody is calculated by applying paragraph (a), taking into account the income limit in subparagraph (c)(2) and the minimum support amount in subparagraph (c)(3), to determine support for children in the primary physical custody of each parent and applying subparagraph (b)(1) to determine support for children in the shared physical custody of the parents. In these calculations, the subparagraph (a)(2) percentages must be adjusted pro rata based on the number of children in each type of custody. These results are then combined to determine the net obligation. Finally, because hybrid custody is an "unusual circumstance," the court must consider whether this support amount should be varied under subparagraph (c)(1).

(c) Exceptions.

(1) The court may vary the child support award as calculated under the other provisions of this rule for good cause upon proof by clear and convincing evidence that manifest injustice would result if the support award were not varied. The court must specify in writing the reason for the variation, the amount of support which would have been required but for the variation, and the estimated value of any property conveyed instead of support calculated under the other provisions of this rule. Good cause may include a finding that unusual circumstances exist which require variation of the award in order to award an amount of support which is just and proper for the parties to contribute toward the nurture and education of their children. The court shall consider the custodial parent's income in this determination.

(2) Paragraph (a) does not apply to the extent that the parent has an adjusted annual income of over $120,000. In such a case, the court may make an additional award only if it is just and proper, taking into account the needs of the children, the standard of living of the children and the extent to which that standard should reflect the supporting parent's ability to pay.

(3) The minimum child support amount that may be ordered is $50 per month ($600 per year) except as provided in subparagraph (a)(3) and paragraph (b).

(4) In addition to ordering a parent to pay child support as calculated under this rule, the court may, in appropriate circumstances, order one or more grandparents of a child to pay child support to an appropriate person in an amount determined by the court to serve the best interests of the child. However, the amount may not exceed the smaller of (A) a proportionate share of the amount required to provide care in a supervised setting to the grandchild, as determined by the court, or (B) the amount that would have been awarded if the child's parents had the incomes of the child's grandparents and paragraphs (a) and (b) were applied. An order under this paragraph may be issued only with respect to a child whose parents are both minors, and the order terminates when either parent becomes 18 years of age. The court must specify in writing the reasons why it considers it to be appropriate to order a grandparent to pay child support under this paragraph and the factors considered in setting the amount of the child support award. In this paragraph, "grandparent" means the natural or adoptive parent of the minor parent.

(5) If the non-custodial parent's income is seasonal, the court may order that the annual support amount be paid in unequal monthly payments, with higher payments during the months the parent expects to receive higher income and lower payments in other months. The court should not make such an order unless (a) it finds that the burden of budgeting for periods of unequal income should be placed on the obligee rather than the obligor and (b) the obligee agrees. The court's order must specify the annual support amount, the average monthly support amount, and the amount due month by month. The order must provide that variations from the average monthly amount begin with monthly payments in excess of the average monthly amount such that a deficit situation cannot occur. Until the excess payments begin, the average monthly amount must be ordered.

(d) Health Care Coverage.

(1) Health Insurance.

(A) The court shall address coverage of the children's health care needs and require health insurance for the children if insurance is available to either parent at a reasonable cost and accessible to the children. The court shall consider whether the children are eligible for services through the Indian Health Service (or any other entity) or other insurance coverage before ordering either or both parents to provide health care coverage through insurance or other means.

(i) Reasonable Cost. There is a rebuttable presumption that the cost of health insurance is reasonable if the cost does not exceed five percent of the adjusted annual income of the parent who may be required to purchase the insurance.

(ii) Accessible. Health insurance is accessible to the children if the plan pays for health care services reasonably available to the children.

(B) The court shall allocate equally the cost of this insurance between the parties unless the court orders otherwise for good cause. An obligor's child support obligation will be decreased by the amount of the obligee's portion of health insurance payments ordered by the court and actually paid by the obligor. A child support award will be increased by the obligor's portion of health insurance if the obligee is ordered to, and actually does obtain and pay for insurance.

(C) The cost of insurance is the cost attributable to the children for whom support is paid. If the cost to the employee of covering the employee alone is the same as the cost to the employee of covering the employee and dependents, then there is no additional cost to the employee for adding the children and no portion of the cost of coverage may be allocated to the children. If dependent coverage can be added for a single cost, rather than per dependent, and the dependent coverage covers dependents in addition to the children subject to the order, the cost of the dependent coverage will be allocated equally among the dependents covered. If there is reason to believe that there is an incremental cost to the employee for insuring dependents but evidence of that incremental cost is unavailable, the cost of insurance is determined by dividing the total cost of coverage by the number of family members covered and multiplying that amount by the number of children subject to the order.

(2) Uncovered Health Care Expenses. The court shall allocate equally between the parties the cost of reasonable health care expenses not covered by insurance unless the court orders otherwise for good cause. A party shall reimburse the other party for his or her share of the uncovered expenses within 30 days of receipt of the bill for the health care, payment verification, and, if applicable, a health insurance statement indicating what portion of the cost is uncovered. Reasonable, uncovered expenses exceeding $5,000 in a calendar year will be allocated based on the parties' relative financial circumstances when the expenses occur.

(e) Child Support Affidavit and Documentation.

(1) Subject to the confidentiality requirements of Civil Rule 90.1(f), each parent in a court proceeding at which child support is involved must file a statement under oath which states the parent's adjusted annual income and the components of this income as provided in subparagraph (a)(1). This statement must be filed with a party's initial pleading (such as the dissolution petition, divorce complaint or answer, etc.), motion to modify, and any response to a motion to modify. The statement must be accompanied by documentation verifying the income. The documents must be redacted to delete social security numbers and to provide only partial financial account information as provided in Civil Rule 90.1(f). The statement must state whether the parent has access to health insurance for the children and, if so, the additional cost to the parent of the children's health insurance. For any infraction of these rules, the court may withhold or assess costs or attorney's fees as the circumstances of the case and discouragement of like conduct in the future may require; and such costs and attorney's fees may be imposed upon offending attorneys or parties.

(2) While there is an ongoing monthly support obligation, either party must provide to the other party, within 30 days of a written request, documents such as tax returns and pay stubs showing the party's income for the prior calendar year. The party making the request must provide documentation of his or her annual income for the same period at the time the request is made. A request under this section may not be made more than once per year. This section does not preclude discovery under other civil rules.

(3) Unless the information has already been provided to the court under Civil Rule 90.1(f), a statement under subsection (e)(1) of this rule must be accompanied by a confidential information sheet as described in Civil Rule 90.1(f). Once a complete confidential information sheet has been submitted to the court listing names, dates of birth, and social security numbers as required, the parties shall omit or redact social security numbers from documents subsequently filed in the action unless otherwise ordered by the court. This paragraph applies to documents filed with the court on or after October 15, 2006.

(f) Definitions.

(1) Shared Physical Custody. A parent has shared physical custody (or shared custody) of children for purposes of this rule if the children reside with that parent for a period specified in writing in the custody order of at least 30, but no more than 70, percent of the year, regardless of the status of legal custody.

(2) Primary Physical Custody. A parent has primary physical custody (or primary custody) of children for purposes of this rule if the children reside with the other parent for a period specified in the custody order of less than 30 percent of the year.

(3) Divided Custody. Parents have divided custody under this rule if one parent has primary physical custody of one or more children of the relationship and the other parent has primary custody of one or more other children of the relationship, and the parents do not share physical custody of any of their children.

(4) Hybrid Custody. Parents have hybrid custody under this rule if at least one parent has primary physical custody of one or more children of the relationship, and the parents have shared physical custody of at least one child of the relationship.

(5) Health Care Expenses. Health care expenses include medical, dental, vision, and mental health counseling expenses.

(g) Travel Expenses. After determining an award of child support under this rule, the court shall allocate reasonable travel expenses which are necessary to exercise visitation between the parties as may be just and proper for them to contribute.

(h) Modification.

(1) Material Change of Circumstances. A final child support award may be modified upon a showing of a material change of circumstances as provided by state law. A material change of circumstances will be presumed if support as calculated under this rule is more than 15 percent greater or less than the outstanding support order. For purposes of this paragraph, support includes health insurance payments made pursuant to (d)(1) of this rule.

(2) No Retroactive Modification. Child support arrearage may not be modified retroactively, except as allowed by AS 25.27.166(d). A modification which is effective on or after the date that a motion for modification, or a notice of petition for modification by the Child Support Services Division, is served on the opposing party is not considered a retroactive modification.

(3) Preclusion. The court may find that a parent and a parent's assignee are precluded from collecting arrearages for support of a child that accumulated during a time period exceeding nine months for which the parent agreed or acquiesced to the obligor exercising primary custody of the child. A finding that preclusion is a defense must be based on clear and convincing evidence.

(i) Third Party Custody.

(1) When the state, or another third party entitled to child support, has custody of all children of a parent, the parent's support obligation to the third party is an amount equal to the adjusted annual income of the parent multiplied by the percentage specified in subparagraph (a)(2). If the third party has custody of some but not all children, the parent's support obligation to the third party is an amount equal to the adjusted annual income of the parent, multiplied by the percentage specified in subparagraph (a)(2) for the total number of the parent's children, multiplied by the number of the parent's children in third party custody, divided by the total number of the parent's children. For purposes of this paragraph, the number of the parent's children only includes children of the parent who live with the parent, are substantially supported by the parent or who are in custody of the third party entitled to support.

(2) If, in addition to a support obligation to a third party, one or both parents retain primary or shared physical custody of at least one of their children, the support obligation between the parents is calculated pursuant to the other paragraphs of this rule, without consideration of the third party custodian or any children in the custody of the third party custodian, except that the percentage in 90.3(a)(2) must be adjusted pro rata for the number of children in the primary custody of a parent, or shared custody of the parents, compared to the total number of children. After that calculation is completed, any support owed may be offset with support owed to a third party custodian under the preceding subparagraph in order to minimize transactions.

(j) Support Order Forms. All orders for payment or modification of child support shall be entered on a form developed by the administrative director. A party may lodge a duplicate of the court form produced by a laser printer or similar device. A device may also print, in a contrasting typestyle equivalent to that produced by a typewriter, text that otherwise would have been entered by a typewriter or word processor. A party or attorney who lodges a duplicate certifies by lodging the duplicate that it is identical to the current version of the court form.

(k) Dependent Tax Deduction. The court may allocate the dependent tax deduction for each child between the parties as is just and proper and in the child's best interests. The allocation must be consistent with AS 25.24.152 and federal law.

(Added by SCO 833 effective August 1, 1987; amended by SCO 935 effective January 15, 1989; by SCO 1008 effective January 15, 1990; by SCO 1192 effective July 15, 1995; by SCO 1246 effective July 15, 1996; by SCO 1269 effective July 15, 1997; by SCO 1295 effective January 15, 1998; by SCO 1362 effective October 15, 1999; by SCO 1399, effective October 15, 2000; by SCO 1417 effective April 15, 2001; by SCO 1526 effective April 15, 2005; by SCO 1595 effective October 15, 2006; by SCO 1686 effective April 15, 2009; by SCO 1716 effective nunc pro tunc to July 1, 2009; by SCO 1782 effective October 15, 2013; and by SCO 1800 effective October 15, 2013)

Note: This rule is adopted under the supreme court's interpretive authority pursuant to Article IV, Section 1 of the Alaska Constitution. Thus, it may be superseded by legislation even if the legislation does not meet the procedural requirements for changing rules promulgated under Article IV, Section 15.

Note to Civil Rule 90.3(c)(1)(B): The Federal Poverty Guidelines are usually revised each February. The new poverty income guideline for one person in Alaska in 1999 is $10,320 (Federal Register, Vol. 64, No. 52, 13428-13430, March 18, 1999). The Alaska Supreme Court has indicated that the poverty guideline that should be used is the guideline for the state in which the obligor resides. See Carstens v. Carstens, 867 P.2d 805, 810 (Alaska 1994).

Note to Civil Rule 90.3(h)(1): Section 44 of ch. 87 SLA 1997 amended AS 25.24.170(b) to allow support to be modified without a showing of a material change in circumstances as necessary to comply with federal law. Federal law eliminates the need for a showing only in cases being enforced by CSSD that are being reviewed under CSSD's period- ic review and modification program. According to § 152 of ch. 87 SLA 1997, the amendment to AS 25.24.170(b) has the effect of amending Civil Rule 90.3 by changing the standard for certain modifications of a support order.

Note to Civil Rule 90.3(h)(2): AS 25.27.166(d), enacted by § 14 of ch. 57 SLA 1995, has the effect of amending Civil Rule 90.3(h)(2) by allowing retroactive modification of child support arrearage under circumstances involving disestablishment of paternity, to the extent such modification is not prohibited by federal law.

Note to SCO 1269: Civil Rule 90.3(c)(3) was added by § 44 ch. 107 SLA 1996. Section 22 of ch. 107 SLA 1996 enacts 25.27.195(b), which allows CSSD to vacate an administrative support order that was based on a default amount rather than the obligor's actual ability to pay. If an order is vacated on this basis, AS 25.27.195(d) allows the agency to modify the obligor's arrearages under the original order. According to § 50 ch. 107 SLA 1996, AS 25.27.195(d) has the effect of amending Rule 90.3(h)(2), which prohibits retroactive modification of child support arrearages.

Note: Section 41 of ch. 87 SLA 1997 amends AS 25.20.050 relating to paternity actions. According to § 150 of the Act, § 41 has the effect of amending Civil Rule 90.3 by requiring the court in a paternity action to issue a temporary child support order upon a showing by clear and convincing evidence of paternity.

Note: Chapter 106 SLA 00 amends various laws relating to medical support orders. According to section 24 of the act, the act amends Civil Rule 90.3 "by specifying that a medical support order may be issued even when a support order for periodic monetary payments is not issued and by setting the requirements for medical support orders."

Note: Chapter 108 SLA 04 (HB 514) enacted several amendments to the child support statutes, including a provision that permits periodic modifications of a child support order without a showing of materially changed circumstances. According to Section 17 of the Act, statutory modifications to AS 25.27.190(e) have the effect of amending Civil Rule 90.3 by changing the grounds for modifying a support order.

Note: Chapter 45 SLA 2009 (SB 96), effective July 1, 2009, enacted changes relating to child support, including changes concerning orders for medical support of a child. According to section 13 of the Act, AS 25.27.060(c) as amended by section 4 of the Act, has the effect of changing Civil Rule 90.3 by changing standards for issuance of medical and other support orders by the court.

CIVIL RULE 90.3

COMMENTARY

I. INTRODUCTION

A. Committee Commentary. This commentary to Civil Rule 90.3 was prepared by the Child Support Guidelines Committee. The commentary has not been adopted or approved by the Supreme Court, but is published by the court for informational purposes and to assist users of Rule 90.3.

B. Purpose. The primary purpose of Rule 90.3 is to ensure that child support orders are adequate to meet the needs of children, subject to the ability of parents to pay.

The second purpose of 90.3 is to promote consistent child support awards among families with similar circumstances. Third, the rule is intended to simplify and make more predictable the process of determining child support, both for the courts and the parties. Predictable and consistent child support awards will encourage the parties to settle disputes amicably and, if resolution by the court is required, will make this process simpler and less expensive.

The final purpose of 90.3 is to ensure that Alaska courts comply with state and federal law. AS 25.24.160(a)(1) requires that child support be set in an amount which is "just and proper...." The Child Support Enforcement Amendments of 1984 (P.L. 98 378) and its implementing regulations (45 CFR 302.56) require states to adopt statewide guidelines for establishing child support. The Family Support Act of 1988 (P.L. 100 485) requires that the guidelines presumptively apply to all child support awards and that the guidelines be reviewed every four years.

The Nature of Child Support. Every parent has a duty to support his or her child. Child support is the contribution to a child's maintenance required of both parents. The amount of support a child is entitled to receive from a particular parent is determined by that parent's ability to provide for the child. Typically, the obligation to pay child support begins on the child’s date of birth if the parents are not living together, or on the date the parents stop living together if separation is after the birth of the child.

C. Scope of Application. Rule 90.3 applies to all proceedings involving child support, whether temporary or permanent, contested or non-contested, including without limitation actions involving separation, divorce, dissolution, support modification, domestic violence, paternity, Child in Need of Aid and Delinquency. The support guidelines in the rule may be varied only as provided by paragraph (c) of the rule. Rule 90.3 applies to support of children aged 18 authorized by Chapter 117, SLA 1992, but otherwise does not apply to set support which may be required for adult children.

II. PERCENTAGE OF INCOME APPROACH

Rule 90.3 employs the percentage of income approach. This approach is based on economic analyses which show the proportion of income parents devote to their children in intact families is relatively constant across income levels up to a certain upper limit. Applications of the rule should result in a non-custodial parent paying approximately what the parent would have spent on the children if the family was intact.

Integral to the rule is the expectation that the custodial parent will contribute at least the same percentage of income to support the children. The rule operates on the principle that as the income available to both parents increases, the amount available to support the children also will increase. Thus, at least in the sole or primary custodial situation, the contribution of one parent does not affect the obligation of the other parent.

III. DEFINING INCOME

A. Generally. The first step in determination of child support is calculating a "parent's total income from all sources." Rule 90.3(a)(1). This phrase should be interpreted broadly to include benefits which would have been available for support if the family had remained intact. Income includes, but is not limited to:

1. salaries and wages (including overtime and tips);

2. commissions;

3. severance pay;

4. royalties;

5. bonuses and profit sharing;

6. interest and dividends, including permanent fund dividends;

7. income derived from self-employment and from businesses or partnerships;

8. social security;

9. veterans’ benefits, except those that are means based;

10. insurance benefits in place of earned income such as workers' compensation or periodic disability payments;

11. workers' compensation;

12. unemployment compensation;

13. pensions;

14. annuities;

15. income from trusts;

16. capital gains in real and personal property transactions to the extent that they represent a regular source of income;

17. spousal support received from a person not a party to the order;

18. contractual agreements;

19. perquisites or in-kind compensation to the extent that they are significant and reduce living expenses, including but not limited to employer provided housing (including military housing) and transportation benefits (but excluding employer provided health insurance benefits);

20. income from life insurance or endowment contracts;

21. income from interest in an estate (direct or through a trust);

22. lottery or gambling winnings received either in a lump sum or an annuity;

23. prizes and awards;

24. net rental income;

25. disability benefits;

26. G.I. benefits (excluding education allotments);

27. National Guard and Reserves drill pay; and

28. Armed Service Members base pay plus the obligor's allowances for quarters, rations, COLA and specialty pay.

Lump sum withdrawals from pension or profit sharing plans or other funds will not be counted as income to the extent that the proceeds have already been counted as income for the purposes of calculating child support under this rule (i.e., contributions to a voluntary pension plan).

Social security Children’s Insurance Benefits (CIB) must be counted as income of the retired or disabled parent on whose behalf the payments are made. CIB paid to the other parent also constitute child support payments by the retired or disabled parent. See Pacana v. State, 941 P.2d 1263 (Alaska 1997).

Means based sources of income such as Alaska Temporary Assistance Program (ATAP), formerly Aid to Families with Dependent Children (AFDC), Food Stamps and Supplemental Security Income (SSI) should not be considered as income. The principal amount of one-time gifts and inheritances should not be considered as income, but interest from the principal amount should be considered as income and the principal amount may be considered as to whether unusual circumstances exist as provided by 90.3(c). Tax deferred dividends and interest earned on pension or retirement accounts, including individual retirement accounts, which are not distributed to the parent are not income. Child support is not income.

B. Self Employment Income. Income from self-employment, rent, royalties, or joint ownership of a partnership or closely held corporation includes the gross receipts minus the ordinary and necessary expenses required to produce the income. Ordinary and necessary expenses do not include amounts allowable by the IRS for the accelerated component of depreciation expenses, investment tax credits, or any other business expenses determined by the court to be inappropriate. Expense reimbursements and in-kind payments such as use of a company car, free housing or reimbursed meals should be included as income if the amount is significant and reduces living expenses.

C. Potential Income. The court may calculate child support based on a determination of the potential income of a parent who voluntarily and unreasonably is unemployed or underemployed. A determination of potential income may not be made for a parent who is physically or mentally incapacitated, or who is caring for a child under two years of age to whom the parents owe a joint legal responsibility. Potential income will be based upon the parent's work history, qualifications and job opportunities. The court shall consider the totality of the circumstances in deciding whether to impute income. When a parent makes a career change, this consideration should include the extent to which the children will ultimately benefit from the change. The court also may impute potential income for non-income or low income producing assets.

D. Deductions. A very limited number of expenses may be deducted from income. Mandatory deductions such as taxes and mandatory union dues are allowable.

1. Mandatory retirement contributions are a deduction. Voluntary contributions, up to the limit stated in the rule, are also a deduction if the earnings on the retirement account or plan are tax-free or tax-deferred. If a parent is not a participant in a mandatory plan, the limit on voluntary contributions is 7.5 % of gross wages and self-employment income. If a parent is a participant in a mandatory plan, the limit on voluntary contributions is 7.5 % of gross wages and self-employment income minus the amount of the mandatory contribution. Some examples of plans and accounts that qualify for the voluntary contribution are: those qualified under the Internal Revenue Code, 26 USC §§ 401, 403, 408 or 457 (such as a traditional IRA, Roth IRA, SEP-IRA, SIMPLE IRA, Keogh Plan, 401(k) Plan, etc.); Thrift Savings Plans under 5 USC § 8440, 37 USC § 211, etc.; and any other pension plan as defined by § 3 (2) of ERISA (P.L. 93-406; 29 USC § 1002(2)).

2. Child support and spousal support payments paid to another person arising out of different cases are deductible if three conditions are met. First, the child support or spousal support must actually be paid. Second, it must be required by a court or administrative order. (Support which is paid voluntarily without a court or administrative order may be considered under Rule 90.3(c).) Third, it must relate to a prior relationship or prior children. The date of birth or adoption of a child determines whether a child is a prior child. See Coleman v. McCullough, 290 P.3d 413 (Alaska 2012). A child support order for children of a later marriage or relationship should take into account an order to pay support for children of a prior marriage or relationship, but not vice-versa. (See Commentary VI.B.2 regarding “subsequent” children.) The amount deducted for support of prior children that is ordered and paid may not exceed the support amount calculated under Rule 90.3(a)(2), using the parent’s current income, as if the prior children were the only children.

3. A deduction also is allowed for in-kind support of prior children of a different relationship in the primary or shared physical custody of the parent. If the parent has primary physical custody of the prior children, the in-kind deduction is the amount calculated under Rule 90.3(a)(2), using the parent’s current income, as if the prior children were the only children. If the parent has shared physical custody of the prior children, the in-kind deduction is calculated as follows: first, calculate the parent’s support under Rule 90.3(a)(2), using the parent’s current income, as if the prior children were the only children; second, multiply this number by the percentage of time the parent has physical custody of the prior children. A parent who pays support for prior children may also take a deduction under Rule 90.3(a)(1)(C) for support ordered and paid. Rule 90.3 was amended to allow deductions for both in-kind and paid support for shared custody of prior children. (Gorton v. Mann, 281 P.3d 81 (Alaska 2012) interpreted the previous version of the rule.) When adding the in-kind deduction to a deduction based on court or administrative-ordered support, the total deduction cannot exceed the amount calculated under subparagraph (a)(2). The deduction for in-kind support of prior children is not reduced by child support received from the other parent. Faulkner v. Goldfuss, 46 P.3d 993, 998 (Alaska 2002).

4. Also, reasonable child care expenses that are necessary to enable a parent to work, or to be enrolled in an educational program which will improve employment opportunities, are deductible. However, the expense must be for the children who are the subject of the support order.

E. Time Period for Calculating Income. Child support is calculated as a certain percentage of the income which will be earned when the support is to be paid. This determination will necessarily be somewhat speculative because the relevant income figure is expected future income. The court must examine all available evidence to make the best possible calculation.

The determination of future income may be especially difficult when the obligor has had very erratic income in the past. In such a situation, the court may choose to average the obligor's past income over several years.

Despite the difficulty in estimating future income, a child support order should award a specific amount of support, rather than a percentage of whatever future income might be. The latter approach has been rejected because of enforcement and oversight difficulties.

IV. PRIMARY CUSTODY

A. Generally. "Primary custody" as this term is used in Rule 90.3 covers the usual custodial situation in which one parent will have physical custody of the child - in other words, the child will be living with that parent - for over seventy percent of the year. The shared custody calculation in paragraph (b)(1) applies only if the other parent will have physical custody of the child at least thirty percent of the year (110 overnights per year). The visitation schedule must be specified in the decree or in the agreement of the parties which has been ratified by the court. See also commentary V.A.

The calculation of child support for the primary custodial case under Rule 90.3(a) simply involves multiplying the obligor's adjusted income times the relevant percentage given in subparagraph (a)(2). (Normally, the portion of an adjusted annual income over $120,000 per year will not be counted. See Commentary VI.D.) As discussed above, the rule assumes that the custodial parent also will support the children with at least the same percentage of his or her income.

B. Visitation Credit. An obligor who exercises extended visitation, even if the visitation does not reach the thirty percent level of shared custody, probably will spend significant funds directly for the children during visitation. The parent with primary custody conversely will have somewhat lower expenses during the extended visitation even though that parent's fixed costs such as housing will not decrease. Consequently, 90.3(a)(3) authorizes the trial court, in its discretion, to allow a partial credit (up to 75% of total support for the period of extended visitation) against a child support obligation. In considering a visitation credit, the court may consider the financial consequences to the parties of the visitation arrangement and a credit. The court shall ensure that support for the child, including contributions from both parents, is adequate to meet the child's needs while the child resides with the custodial parent. A visitation credit may be taken only if the extended visitation actually exercised exceeds 27 consecutive days and the court has authorized the specific amount of the credit. Nominal time with the custodial parent during the visitation period, including occasional overnights, does not defeat the visitation credit.

V. SHARED, DIVIDED, AND HYBRID PHYSICAL CUSTODY

A. Shared Custody - Generally. "Shared custody" as this term is used in Rule 90.3 means that each parent has physical custody of the children at least thirty percent of the year according to a specified visitation schedule in the decree. "Shared custody" as used in 90.3 has no relation to whether a court has awarded sole or joint legal custody. "Shared custody" is solely dependent on the time that the decree or agreement of the parties which has been ratified by the court specifies the children will spend with each parent.

In order for a day of visitation to count towards the required thirty percent, the children normally must remain overnight with that parent. (Thirty percent of the overnights in a year total 110 overnights.) Thus, a day or an evening of visitation by itself will not count towards the total of time necessary for shared custody. Visitation from Saturday morning until Sunday evening would count as one overnight. However, the court may use another method of calculating the percentages of custody when counting overnights does not accurately reflect the ratio of expenditures by the parents.

B. Calculation of Shared Custody Support. The calculation of support in shared custody cases is based on two premises. First, the fact that the obligor is spending a substantial amount of the time with the children probably means the obligor also is paying directly for a substantial amount of the expenses of the children. Thus, the first step in calculating shared custody support is to calculate reciprocal support amounts for the time each parent will have custody based on the income of the other parent. The "high income" limit of paragraph (c)(2) ($120,000) applies to the determination of adjusted income at the first stage of this process. A parent's annual support amount for purposes of this calculation will be no less than $600. The support amounts then are offset.

This calculation assumes that the parents are sharing expenses in roughly the same proportion as they are sharing custody. If this assumption is not true, the court should make an appropriate adjustment in the calculation.

The second premise is that the total funds necessary to support children will be substantially greater when custody is shared. For example, each parent will have to provide housing for the children. Thus, the amount calculated in the first step is increased by 50% to reflect these increased shared custody costs. However, the obligor's support obligation never will exceed the amount which would be calculated for primary custody under 90.3(a). The amount which would be calculated under 90.3(a) should include any appropriate visitation credit as provided by (a)(3).

C. Failure to Exercise Shared Custody. An inequity may arise under the shared custody calculation of support if the obligor does not actually exercise the custody necessary to make shared custody applicable (i.e., at least 30% of the time). If the obligor parent does not actually exercise sufficient physical custody to qualify for the shared custody calculation in the rule (at least 110 overnights per year See Commentary, Section V.A), then (a)(2) of this rule will apply to the child support calculation. Failure to exercise custody in this regard is grounds for modification of support, even if the custody order is not modified. However, this provision may not be interpreted to allow the custodial parent to profit by denying visitation.

D. Divided Custody. Rule 90.3(f)(3) defines divided custody as when both parents have primary physical custody of at least one of the parent's children and the parents do not share custody of any of their children. The calculation of support for divided custody is a two-part process.

The first step is to offset the amounts of support each parent would pay the other for the children in that parent's primary custody calculated under 90.3(a). For example, if the father has primary custody of one child and the mother primary custody of three children (four children total), the father would owe support to the mother of 33% (three children) of his adjusted annual income. This amount would be offset by 20% (one child) of the mother's adjusted annual income. This method was implicitly approved in Bunn v. House, 934 P.2d 753, 755-58 (Alaska 1997). Note that this method of calculation supercedes the method used in Rowen v. Rowen, 963 P.2d 249, 254 (Alaska 1998).

The second step in determining divided custody support is for the court to carefully consider whether the support amount should be varied under paragraph (c)(1). A divided custody case should be treated as an unusual circumstance under which support will be varied if such a variation is "just and proper..."

E. Hybrid Custody. Rule 90.3(f)(4) defines hybrid custody as when at least one parent has primary physical custody of at least one child of the relationship, and the parents share physical custody of at least one child of the relationship.

The method for calculating child support in a hybrid custody situation in Rule 90.3(b)(3) comes from Turinsky v. Long, 910 P.2d 590, 596-97 n.13 (Alaska 1996).

Step One. Determine the percentage of income to use in both the "primary" and "shared" calculations as follows: divide the Rule 90.3(a)(2) percentage for the total number of children by the total number of children to determine a per-child percentage. For example, if there are four children, divide 36% by 4 to get a per child percent of 9%.

Step Two. Use Rule 90.3(a) to calculate the amount each parent owes for any children in the primary physical custody of the other parent. However, instead of using the percentages in (a)(2), use the per-child percent from Step One multiplied by the number of children in the other parent's primary physical custody. For example, if two of the four children are in the mother's primary physical custody, the father would owe 18% (2 x 9%) of his adjusted annual income for the support of those children.

Step Three. Use Rule 90.3(b) to determine the amount owed for the children in shared physical custody and which parent owes it. Use the per-child percentage from Step One multiplied by the number of children in shared physical custody instead of the percentage in (a)(2). For example, if two of the four children are in shared physical custody, each parent's adjusted annual income will be multiplied by 18% (2 x 9%).

Step Four. Add the amounts calculated in Steps Two and Three if they are owed by the same parent. Offset the amounts calculated in Steps Two and Three if they are owed by different parents. The result is the total amount owed each year.

Step Five. Consider whether the support amount should be varied under paragraph (c)(1) of the rule. Hybrid custody is an unusual circumstance in which support must be varied if such a variation is "just and proper."

Sample hybrid custody calculation: In the following sample calculation, there are four children in the family. Mother has primary custody of two, and the parents share custody of the other two. The shared two children will be in mother's physical custody 70 percent of the time and in father's 30 percent of the time. Father's adjusted annual income is $50,000. Mother's is $40,000. Step One. The percentage of income from (a)(2) of the rule for four children is 36 percent. Therefore, the percentage per child is 9 percent [36 divided by 4]. Step Two. Father owes mother $9000 per year for the two children in mother's primary custody [$50,000 x 18%]. Step Three. Father owes mother $6210 per year for the two children in shared custody [(father owes $50,000 x 18% = $9000 x 70% = $6300) - (mother owes $40,000 x 18% = $7200 x 30% = $2160). $6300 - $2160 = $4140 x 1.5 = $6210]. Step Four. Thus, for all four children, father owes mother $15,210 [$9000 + $6210].

VI. EXCEPTIONS

A. Generally. Child support in the great majority of cases should be awarded under 90.3 (a) or (b) in order to promote consistency and to avoid a tendency to underestimate the needs of the children. Nevertheless, the circumstances in which support issues arise may authorize courts to vary support awards for good cause.

The court may apply this good cause exception only if the parent requesting that support be varied presents clear and convincing evidence that manifest injustice would result if the support award were not varied. In addition, a prerequisite of any variation under 90.3(c) is that the reasons for it must be specified in writing by the court.

What constitutes "good cause" will depend on the circumstances of each cause. Three situations constituting "good cause" are discussed below in sections VI.B D. These three specific exceptions are not exclusive; however, the general exception for good cause may not be interpreted to replace the specific exceptions. Absent the (c)(1) exception (unusual circumstances), the (c)(2) exception (high income), or the (c)(3) exception (low income), the rule presumes that support calculated under 90.3(a) or (b) does not result in manifest injustice.

B. Unusual Circumstances. 90.3(c)(1) provides that a court shall vary support if it finds, first, that unusual circumstances exist and, second, that these unusual circumstances make application of the usual formula unjust. Examples might include especially large family size, significant income of a child, health or other extraordinary expenses, or unusually low expenses. This determination should be made considering the custodial parent's income because the percentage of income approach used in Alaska tends to slightly understate support relative to the national average for cases in which the custodial spouse does not earn a significant income. This understatement relative to the national average becomes substantial if the custodial parent has child care expenses. The application of the unusual circumstances exception to particular types of factual situations is considered below.

1. Agreement of the Parents. The fact that the parties, whether or not represented by counsel, agree on an amount of support is not reason in itself to vary the guidelines. The children have an interest in adequate support independent of either parent's interest. Thus, approval of any agreement which varies the guidelines, whether in a dissolution, by stipulation or otherwise, must be based upon an explanation by the parties of what unusual factual circumstances justify the variation.

2. Subsequent Children. A parent with a support obligation may have other children living with him or her who were born or adopted after the support obligation arose. The existence of such "subsequent" children, even if the obligor has a legal obligation to support these children, will not generally constitute good cause to vary the guidelines. However, the circumstances of a particular case involving subsequent children might constitute unusual circumstances justifying variation of support. The court should reduce child support if the failure to do so would cause substantial hardship to the "subsequent" children.

In addition, the interests of the subsequent family may be taken into account as a defense to a modification action where an obligor proves he or she has taken a second job or otherwise increased his or her income specifically to better provide for a subsequent family. This defense to an upward modification action should not be allowed to the extent that the prior support was set at a lower amount prior to the adoption of this rule, or to the extent that the obligor's increase in income is limited to ordinary salary increases.

In considering whether substantial hardship to "subsequent" children exists, or whether the existence of a subsequent family should defeat a motion to increase child support, the court should consider the income, including the potential income, of both parents of the "subsequent" children.

3. Relocation of Custodial Parent. The relocation of the custodial parent to a state with a lower cost of living normally will not justify a reduction in support. The level of Alaska's guidelines is comparable to the national average. The fact that the obligor parent's income has in effect marginally increased relative to the children's living expenses simply enables the children to be supported at a slightly higher level.

4. Prior and Subsequent Debts. Prior or subsequent debts of the obligor, even if substantial, normally will not justify a reduction in support. The obligation to provide child support is more important than the obligation to fulfill most other obligations. However an obligor parent may attempt to present evidence which shows the existence of exceptional circumstances in an individual case.

5. Income of a New Spouse (or other person in the household). The income of a new spouse of either the custodial or obligor parent normally will not justify a variation in support. Either party may attempt to show that exceptional circumstances exist in a particular case. A parent who does not work because of the income of a new spouse (or other person in the household) may be assigned a potential income.

6. Age of Children. While the costs of raising children who are very young or who are over about ten years old are generally greater than raising other children, this in itself does not justify an increase in support. However, it should be considered in concert with other circumstances, and a parent always may seek to establish exceptional expenses in a particular case.

7. Denial of Visitation. A denial of visitation may not be countered with a reduction in support. See AS 25.27.080(c). Neither may non-payment of support be countered by a denial of visitation. Courts should use their powers to strictly enforce the visitation and custody rights of obligor parents.

8. Property Settlement. A parent may justify variation of the guidelines by proving that a property settlement in a divorce or dissolution between the parents provided one of the parents with substantially more assets than the parent otherwise would have been entitled to, that this inequity was intended to justify increasing or decreasing child support, and that this intent specifically was stated on the record. Any such change in monthly child support may not exceed the actual excess of the property settlement apportioned over the minority of the child.

However, courts should not approve in the first instance unequal property settlements which are meant to increase or decrease child support payments. "Property divisions are final judgments which can be modified only under limited circumstances, whereas child support awards can be changed periodically under much more liberal standards. One should not be a trade-off for the other." Arndt v. Arndt, 777 P.2d 668 (Alaska 1989)

9. Overtime Income. In most cases income from overtime or a second job will be counted as adjusted annual income under Rule 90.3(a). However, the court has discretion not to include this income when, for example, the extra work is undertaken to pay off back child support.

C. Low Income of Obligor. Paragraphs (a) and (b) of the rule must be applied even in low-income situations. However, in a paragraph (a) [primary custody] calculation and in the first stage of a paragraph (b) [shared, divided or hybrid custody] calculation, if the calculations result in a support amount below $50.00 per month, a minimum support amount of $50.00 per month ($600 per year) must be set. This $50.00 minimum support applies for all children, not to each child separately. The minimum level may be reduced if an extended visitation credit is granted under Rule 90.3(a)(3). This minimum support amount does not apply to final support amounts for shared, divided, or hybrid custody entered under Rule 90.3(b).

D. High Income of a Parent. Rule 90.3 provides that the percentages for child support will not be applied to a parent's adjusted annual income of over $120,000. An additional award may be made only if the other parent is able to present evidence which justifies departure from this general rule. The standard of proof for a departure is preponderance of the evidence, unlike the higher standard of clear and convincing evidence required for a showing of manifest injustice under exception (c)(1). The factors which the court should consider when making an additional award in high income cases are specified in the rule.

E. Retroactive Establishment.

1. Retroactive Establishment of Child Support. It will sometimes be necessary for the court to establish support for a time when no complaint or petition for support had yet been served, and there was no other court or administrative order in effect. The court has determined that Civil Rule 90.3 applies to such calculations. Vachon v. Pugliese, 931 P.2d 371, 381-2 (Alaska 1996). However, in some circumstances unfairness may result from rigid application of the rule. The court should consider all relevant factors in such a situation, including whether the obligor was aware of the support obligation, especially if the obligor had children subsequent to that child. See also Commentary VI.B.2.

2. Retroactive Application of Amendments. When establishing support for a period of time before a complaint or petition was served, the court should apply the most current version of the rule, except for portions of the rule that state dollar amounts. This is because Civil Rule 90.3, unlike most other court rules, is interpretive. The most current version of the rule is presumably the most refined interpretation to date of the statute calling for fair and equitable child support awards. For example, the credit for prior children living with the obligor was not found in early versions of the rule, but nonetheless should be applied when support is being established. However, the dollar amounts in the rule, such as the minimum support amount (increased from $40 to $50) and the income cap (increased from $60,000 to $120,000), have been revised over time to reflect inflation or for other reasons. With regard to these amounts, the court should apply the version of the rule that was in effect in the month for which support is being calculated.

F. Seasonal Income. In Alaska, seasonal employment is common. Obligors employed in such seasonal industries as commercial fishing, tourism, and construction often earn a large percentage of their income during only a few months of the year. It might be easier for some seasonally-employed obligors to meet their child support obligations if their child support orders required the bulk of their annual child support amount to be paid during the months they are employed. Thus, the rule allows courts the flexibility of ordering unequal monthly payments, as long as the total annual amount equals the amount calculated in paragraph (a) or (b) of the rule. The court should not make such an order unless it finds that the burden of budgeting for periods of unequal income should be placed on the obligee rather than the obligor.

The court's order must specify the annual support amount, the average monthly support amount, and the amount due for each month. For example, if the annual child support amount is $3600, the average monthly amount is $300. Instead of requiring 12 equal monthly payments of $300, the order could require payments of $500 per month from April through September and $100 per month from October through March.

Payments under the order must be set up so that a deficit situation will not occur. This means that, at any point in time, the total amount owed under the order (for the entire period the order has been in effect) must not be less than the amount that would have been owed for that entire period if no seasonal adjustment had been made. Therefore, in the above example, if the order is entered in April through September, it can order $500 monthly payments for the April - September period, followed by $100 monthly payments for October - March. However, if the order is entered anytime in October through March, the order must require $300 payments through March, then $500 payments from April through October, and then $100 payments the following October - March.

VII. HEALTH CARE COVERAGE

A. Health Insurance. Rule 90.3(d) requires that the court address coverage of the children's health care needs including expenses not covered by insurance. The court must require health insurance if the insurance is available to either party at a reasonable cost. There is a rebuttable presumption that the cost of health insurance is reasonable if the cost does not exceed five percent of the adjusted annual income of the parent who may be required to purchase the insurance. In determining whether the presumption has been rebutted, the court should consider any evidence relevant to its conclusion, including the cost of any health insurance for the children that either parent was paying before the action was commenced. This recognizes that a cost that a parent voluntarily paid for a child’s insurance before an action was commenced was likely a cost that the parent considered to be reasonable.

The health insurance will be paid by the party to whom it is available. However, the court must allocate the cost of insurance between the parties. Note that the cost to be allocated is limited to that portion of the total cost necessary to insure the children involved - not the parent, the parent's new spouse or children of another relationship. If the insurance for the children also covers other members of the purchaser's family, and evidence is unavailable on the specific cost of insuring only the children subject to the order, the cost of covering the children must be determined by allocating the total cost of coverage pro rata among all covered family members. See Rusenstrom v. Rusenstrom, 981 P.2d 558 (Alaska 1999). If there is no additional cost to the employee for adding children to the coverage - that is, the cost of coverage is the same whether there are no dependants or several dependants - no portion of the cost of coverage may be allocated to the children. In such cases, no adjustment may be made to the child support obligation because none of the cost of coverage can be allocated to the children.

The allocation of the cost of the children's insurance between the parents should be 50/50 unless the court finds good cause to change that percentage. A substantial difference in the parties' relative financial circumstances may constitute good cause. The rule requires the court to adjust child support either upward or downward to reflect the allocation. Paragraph (h)(1) provides that payments for health care insurance are included in deciding whether there has been a 15% change in support which constitutes a material change of circumstances.

The court must also determine if the health insurance is accessible. Health insurance is accessible if the plan pays for health care services reasonably available to the child. “Accessibility” is broadly applied in the rule. Due to the geographical expanse of the state, “accessibility” is not limited to health care services available in the child’s home town or village; some health care plans will pay for transportation to receive services from a health care provider in another city. If the health insurance pays for health care services in another city and transportation to the city, the insurance is considered accessible to the children.

B. Uncovered Health Care Expenses. Rule 90.3(d)(2) provides that the court also allocate reasonable health expenses not covered by insurance. The rule requires the party who did not obtain the health care to reimburse the other party within 30 days of receiving the necessary paperwork. The paperwork should include the medical bill, payment verification, and, if medical insurance applies, an insurance statement indicating any uncovered health care expenses. These materials should be sent to the other party within a reasonable time. The rule should be read to require prepayment of allowable uncovered medical cost when prepayment is required by the health care provider.

The rule provides that the usual 50/50 presumption does not apply for any amount in excess of $5,000 per calendar year. In such a situation, the excess expenses should be allocated based on the parties' relative financial circumstances during the approximate time period when the expenses occurred.

C. Definition of Health Care Expenses. Paragraph (f) defines health care expenses to include medical, dental, vision and mental health counseling expenses.

VIII. CHILD SUPPORT AFFIDAVIT AND DOCUMENTATION

A. Affidavit and Documentation. Each parent in a proceeding involving a determination of child support must provide the court with an income statement under oath. The rule also requires that the income statement of a parent be verified with documentation of current and past income. Suitable documentation of earnings might include paystubs, employer statements, or copies of federal tax returns. The income statement, with documentation, must be filed with the party's first pleading in the action. This first pleading is the dissolution petition in a dissolution, the complaint or answer in a divorce, the custody petition or response in a child custody case under AS 25.20.060, or the motion or opposition in a motion to modify child support or motion to change custody. The court may impose sanctions on a party who does not timely file the income statement with appropriate documentation. The rule repeats language set out in Civil Rule 95(a). In a default case the court must decide support on the best available information, but should require the present party to make reasonable efforts to obtain reasonably accurate information. The court may use the best evidence available, including statistics maintained by the Department of Labor and Workforce Development, to determine the parent’s total income from all sources.

Income affidavits must be filed even by a parent whose income is not presently being used to calculate child support. That parent's income may be relevant if there is a request by either parent for a variation under subsection (c), or it may be needed to determine what percentage of uncovered health care expenses each parent will pay under subsection (d)(2) or how much of travel expenses each parent will pay under subsection (g). In addition, the court may wish to enter an order which automatically shifts the child support obligation if a child changes his or her primary residence, as permitted under Karpuleon v. Karpuleon, 881 P.2d 318 (Alaska 1994).

B. Requests for Income Information. Paragraph (h) of the rule allows child support orders to be modified if a material change of circumstances is shown. A change in a parent's income qualifies as a "material change" if it would increase or decrease the support amount by 15 percent. Paragraph (e)(2) of the rule provides an informal method either parent can use, while a support order is in effect, to learn whether there has been a large enough change in the other parent's income to justify a change in the amount of child support. This paragraph allows a parent to send the other parent a written request for documents such as tax returns and pay stubs showing the other parent's income for the prior calendar year (January through December). However, the parent making this request must attach to the request a copy of the same type of documents showing his or her own income for the prior calendar year. This request can only be made once each year. The parent who receives the request must provide the requested information within 30 days after the request is made. The parents can then do the necessary calculations to determine whether a motion to modify child support should be filed. In addition, a parent may always use the formal discovery procedures provided in the other civil rules to obtain income information from the other parent.

IX. TRAVEL EXPENSES

The court shall allocate any travel expenses that are necessary to exercise visitation. This allocation should generally be done on a percentage basis because the actual costs may not be known or may change. The court should take care that its allocation of these expenses does not interfere with a parent's ability to provide the basic necessities for the children.

X. MODIFICATION

A. Material Change in Circumstances. Alaska law allows the modification of support orders upon a material change in circumstances. A significant amendment to Rule 90.3 constitutes a material change in circumstances pursuant to AS 25.24.170(b). Rule 90.3(h) states that a material change in circumstances will be presumed whenever the change would result in an increase or decrease of support under the rule of at least 15%. However, a support order can provide that the support obligation will be adjusted without further order of the court upon a change of health insurance costs and notice of the change to the other parent (and CSSD if CSSD is handling collections).

See Flannery v. Flannery, 950 P. 2d 126 (Alaska 1997), concerning what constitutes a material change of circumstances when the parties by agreement originally set support at a level higher than would have normally been required under Rule 90.3.

A temporary reduction in income normally will not justify an ongoing modification reducing child support. However, a temporary, unforseen, and involuntary reduction in income may justify a temporary reduction in support subject to the retroactivity provisions in Rule 90.3(h)(2). In considering such a reduction, the court should consider the needs of the children, the ability of the other parent to provide support, liquid assets available to provide support, and the future earning capability of the obligor parent. See Flannery v. Flannery, 950 P. 2d 126, 133 (Alaska 1997); Patch v. Patch, 760 P. 2d 526, 530 (Alaska 1988).

Federal law, recognized in AS 25.24.170(b) and 25.27.193, appears on its face to require allowing modifications every three years without a showing of a material change in circumstances. See 42 U.S.C. 666(a)(10)(A)(iii). However, in response to questions form states, the federal Office of Child Support Enforcement has stated (in Action Transmittal OCSE-97-10, pages 28-31) that existing regulations which allow reasonable quantitative standards for modifications (such as Alaska's 15% standard) continue to apply.

B. No Retroactive Modification.

The Omnibus Budget Reconciliation Act of 1986, P.L. 99-509, Section 9103(a) (the Bradley Amendment), prohibits retroactive modification of child support arrearages. Rule 90.3(h)(2) is intended to restate this prohibition, including the exception allowed by federal law for modification during the pendency of a modification motion. Pursuant to this rule, the notice of petition for modification sent by the Child Support Services Division triggers the legal process for modification of child support awards and thus an increase or decrease of support back to the date of this notice does not constitute retroactive modification.

The prohibition against retroactive modification limits both requested decreases and increases in child support. See Prohibition of Retroactive Modification of Child Support Arrearages, 54 Fed. Reg. 15,763 (1989). Thus, either the custodial or the obligor parent should promptly apply for a modification of child support when a material change in circumstances occurs.

See Section VI.B.2 of the commentary as to the extent support of a "subsequent" family may be used as a defense to a modification action to increase child support.

C. Preclusion. The sometimes harsh effect of the rule against retroactive modification may be mitigated by the preclusion provision of Rule 90.3, which limits collection of a support arrearage in limited and appropriate cases. Preclusion may be applied to limit collection by a parent's assignee, such as the child support services agency of this or another state. Clear and convincing evidence is required to support a finding of preclusion.

Preclusion may apply only in cases in which the obligor assumed primary physical custody of a child for the time period for which the obligee now attempts to collect support. The time period must be more than nine months. Preclusion does not apply in cases in which the proportion of shared custody changed or when there is a shift from primary physical custody to shared custody. Preclusion may apply when the obligor assumes primary physical custody of any number of the children on which the support obligation in arrearage is based. Murphy v. Newlynn, 34 P.3d 331 (Alaska 2001).

As an alternative to preclusion, AS 25.27.020(b) may allow a reduction of support owed to the other parent when the obligor assumes custody of one or more of the children. See State v. Gause, 967 P.2d 599 (Alaska 1998).

XI. THIRD PARTY CUSTODY

A. Support Owed to the Third Party

If the state or another third party entitled to child support has custody of all of a parent's children, child support is calculated in the same way as it would be calculated in other cases. In other words, support is equal to the parent's adjusted annual income multiplied by the relevant percentage in paragraph (a)(2) based on the number of children.

However, this basic calculation does not work when the state or other third party has takes custody of only some of a parent's children. In this case, the rule provides that the total support calculation (as calculated for the total number of the parent's children) be reduced to only the proportion of the parent's children of whom the state third party has custody. For example, the state third party might have custody of two of a parent's three children. Support would be calculated as the parent's adjusted annual income, multiplied by .33 (the relevant percentage for three children), multiplied by 2/3 (the state third party has custody of two of the parent's three children). Note that the calculation only takes into account children which are either in state third party custody, substantially supported by the parent or living with the parent. A child of the parent, for example, living with a relative without substantial support would not be counted in the above calculation.

The deduction for prior children in (a)(1)(C) and (D) would not apply because these children are already taken into account as children living with or supported by the parent.

B. Support Owed Between the Parents

There will be instances when a third party is entitled to support for some of the parent's children, but one or both parents retain primary or shared custody of their remaining children. In this case, child support between the parents should be calculated using Rule 90.3 based on the pro rata support percentages for the children not in third party custody. After that calculation, any support owed may be offset with amounts owed under 90.3(i)(1) to minimize transactions.

For example, a father might have custody of two children and the mother's sister might have custody of, and be entitled to support for, the parents' third child. Both parents in this example have a $45,000 adjusted annual income. Under Rule 90.3(i)(1), the sister is entitled to $4,950 per year from the father [$45,000 (annual income) x 33% (percentage for three children) x 1/3 (custodian has one of three children)]. The sister also is entitled to the same amount from the mother. (The parents' incomes are the same and the mother supports the children living with the father.)

The pro rata percentage for each child under 90.3 (a)(2) would be 33% (three children) divided by 3 or 11% per child. Under 90.3(i)(2), the mother owes the father $9,900 per year in support ($45,000 x 22%). If the support amounts are offset, the mother will owe her sister $9,900 per year and the father $4,950 per year. The court could decide, however, that it was preferable not to offset the support amounts because one of the parents might not pay the third party.

XII. SUPPORT ORDER FORMS

Subsection (j) was formerly Civil Rule 67(b).

XIII. DEPENDENT TAX DEDUCTION

Waggoner v. Foster, 904 P.2d 1234 (Alaska 1995), provides that tax deductions for the children should be allocated based on the child's best interests. AS 25.24.152 places some limits on giving the deduction to the parent with less physical custody. Federal income tax law also may limit who can take the deduction.

(Amended by SCO 1417, effective April 15, 2001; by SCO 1526 effective April 15, 2005; by SCO 1686 effective April 15, 2009; by SCO 1782 effective October 15, 2013; and by SCO 1800 effective October 15, 2013)

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Rule 90.4. Proceedings to Establish Parentage.

When genetic testing is ordered under AS 25.20.050, test results must be served on all parties to the action at least 20 days prior to any hearing or trial at which such results may be introduced into evidence. The test results must be accompanied by an affidavit, prepared by a qualified person, which addresses the qualifications of the affiant and the validity of the testing procedures and results. Any objection to the test results must be filed and served no later than 10 days before the hearing or trial. If no timely objection is filed, the test results are admissible as evidence of paternity at the hearing or trial without the need for foundation testimony or other proof of authenticity or accuracy.

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Rule 90.5 Expedited Judicial Relief from Action Against Occupational or Driver's License for Unpaid Child Support.

(a) Scope. This rule sets out the procedure for requesting expedited judicial relief from a decision by the Child Support Services Division (CSSD) under AS 25.27.244 (adverse action against delinquent obligor's occupational license) or AS 25.27.246 (adverse action against delinquent obligor's driver's license).

(b) Petition.

(1) Requirements. To request expedited judicial relief under AS 25.27.244 or 25.27.246, a person must file a petition in the superior court. The petition must be on a form published by the Alaska Court System and must specify which of the statutory grounds for relief the petitioner is relying on. The petition should be accompanied by:

(A) a written explanation of why the petitioner is entitled to judicial relief (not to exceed five pages);

(B) any documents that the petitioner intends to present to the court;

(C) a list of the witnesses whom the petitioner intends to present at the court hearing;

(D) a copy of CSSD's decision (titled "Notice of Occupational License Review Decision" or "Notice of Driver's License Review Decision"); and

(E) a copy of the child support order or payment schedule that CSSD seeks to enforce.

(2) Number of Copies. The petitioner must file the original plus one copy of the petition and any attachments.

(3) Deadline for Filing. The petition must be filed within 30 days after the date that the petitioner receives CSSD's decision (titled "Notice of Occupational License Review Decision" or "Notice of Driver's License Review Decision"). The petition may be filed either by delivering or mailing it to the clerk of court. A petition is deemed to be filed on the date it is received by the clerk.

(4) Service on CSSD. Upon receipt of the petition, the court shall promptly serve CSSD by mailing or delivering the extra copy to the appropriate office of the Department of Law.

(5) Grounds for Rejecting Petition. The clerk shall refuse to accept the petition for filing if the petitioner has failed to specify which of the statutory grounds for relief the petitioner is relying on and has provided no other written explanation of why the petitioner is entitled to judicial relief.

(c) Response. CSSD's response to the petition must be filed and served within fifteen days after service of the petition under (b)(4). The response must include a written explanation of CSSD's position (not to exceed five pages) and must be accompanied by any documents that CSSD intends to present at the hearing and a list of the witnesses whom CSSD intends to present.

(d) Hearing. Upon receipt of the petition, the court shall schedule a hearing. The hearing must be held not less than 20 nor more than 30 days after the petition is served under (b)(4). Telephonic participation at the hearing is governed by Civil Rule 99.

(e) Peremptory Challenge. A party may file a notice of change of judge under Civil Rule 42(c). A party's notice is timely if filed within five days after notice that the case has been assigned to a specific judge.

(f) Relief Available in Expedited Proceeding. The court's decision is limited to a determination of the following issues, which the court shall determine de novo:

(1) whether a support order or payment schedule is in effect;

(2) whether the petitioner is the obligor under the support order that CSSD is seeking to enforce; and

(3) whether the petitioner is in substantial compliance with the support order or payment schedule. A petitioner is in substantial compliance if: (A) the petitioner owes less than four times the monthly obligation; or (B) the petitioner is making the best possible efforts under the circumstances to pay the arrearages.

(g) Other Judicial Relief. To obtain other judicial relief, the petitioner must file an appeal from an administrative agency decision under Appellate Rule 602.

(Adopted by SCO 1375 effective October 15, 1999 and amended by SCO 1676 effective October 15, 2008)

Note: The petition forms (DR-335 for occupational licenses and DR-336 for driver's licenses) are available at all superior court locations and from the Child Support Services Division.

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Rule 90.6. Appointment of Child Custody Investigator.

(a) Appointment. In an action under AS 25.20, AS 25.24, or AS 18.66, the court may appoint an expert under Evidence Rule 706 to investigate custody, access, and visitation issues and provide an independent opinion concerning the child's best interests. If the parties cannot afford a private custody investigator, the court may appoint the court custody investigator to conduct the investigation and provide an expert opinion.

(b) Qualifications.

(1) A custody investigator should possess knowledge, skill, experience, training, or education that allows the custody investigator to conduct a thorough and impartial investigation and offer an informed opinion to the court regarding custody and visitation issues. Specifically, the custody investigator should have an understanding of the following as appropriate to the case:

(A) child development from infancy through adolescence;

(B) impact of divorce and parental separation on a child;

(C) unique issues related to families involved in custody disputes;

(D) domestic violence and substance abuse and their impact on children;

(E) Alaska statutes and rules relating to custody determinations;

(F) the ability to communicate effectively with children and adults;

(G) the ability to communicate recommendations orally and in writing;

and (H) other qualifications appropriate to the particular case.

(2) Upon request of a party, a custody investigator or prospective custody investigator shall provide to the parties a written summary of relevant education and experience.

(c) Disclosure of Conflicts. The custody investigator shall disclose any relationships or associations between the investigator and any party which might reasonably cause the investigator's impartiality to be questioned. This disclosure must be made no later than 10 days after appointment.

(d) Report.

(1) Deadline for Filing and Contents. The court shall specify the date by which the custody investigator must file and serve a written report. The report must describe the investigation, including who was interviewed and what records were reviewed, summarize the information obtained, and explain the custody investigator's conclusions and recommendations utilizing the applicable statutory factors.

(2) Admission of Report into Evidence. Unless otherwise ordered, the custody investigator's report is deemed to be admitted into evidence upon filing and may be reviewed by the court before the hearing or trial. A party may require the custody investigator to appear at a hearing or trial to testify about the report. To preserve this right, the party must include the custody investigator on the party's final witness list. The party must also take appropriate steps to ensure the custody investigator's presence at the hearing or trial, which may include requesting the issuance of a subpoena.

(3) Confidentiality. The custody investigator’s report is confidential unless otherwise ordered by the court. However, it may be disclosed to a party’s expert for the purpose of consultation for trial.

(4) Meeting with Parties. The custody investigator may meet with the parties jointly or separately at any time to discuss the investigation and the investigator's conclusions in order to facilitate a voluntary resolution of the issues.

(e) Investigation. Unless the court has limited the scope of the investigation, a custody investigation should usually include:

(1) individual interviews with each parent;

(2) individual interviews with new spouses, live-in partners, or significant others of each parent;

(3) individual interviews with or observations of each child in the family;

(4) observation of parent-child interactions;

(5) review of the court file and other documents provided by the parties;

(6) criminal and child protection record checks on the parents, new spouses, and other people living in the household;

(7) review of relevant records pertaining to the child and household members, subject to applicable privileges;

(8) review of personal references provided by friends or family members of the parents;

(9) in-person or telephone interviews with other individuals who have information about the family, as the investigator believes is necessary.

(f) Release of Records. Unless otherwise specified in the appointment order, the custody investigator may request a party to execute a release authorizing the investigator to inspect and copy confidential records pertaining to the child or to the party. Within ten days after receiving a request for a release, a party must either execute the release or file a motion for a protective order under Civil Rule 26(c). A motion for a protective order must be accompanied by a certification that the party has conferred or attempted to confer with the custody investigator in an effort to resolve the dispute without court action. If the party fails to respond, the custody investigator may notify the court and the court shall enter an order directing that the records be released.

(g) Contact with Parties and the Court.

(1) Contact with Parties. Unless otherwise ordered, a custody investigator may communicate with a party who is represented by an attorney without prior notice to the attorney.

(2) Contact with Court. Unless all parties consent, a custody investigator shall not engage in ex parte communications with the court concerning a pending case except for scheduling and other administrative purposes when circumstances require.

(h) Discovery. A party may depose a custody investigator appointed under this rule after completion of a report. Documents and records in the possession of the custody investigator are discoverable under Civil Rule 30(b)(5) and Civil Rule 34 as though the custody investigator were a party to the action subject to any limitations set by the court as to the use and dissemination of confidential records.

(i) Compensation. Fees and costs for a private custody investigator will be divided equally between the parties unless the court finds good cause to change this allocation.

Commentary. Evidence Rule 706 authorizes the court to appoint independent experts in civil or criminal litigation. An expert appointed under Rule 706 must advise the parties of the expert's findings, may be deposed by either party, and may be called to testify by either party or the court.

When a private custody investigator is being appointed, the court may ask the parties to suggest individuals for appointment.

A full custody investigation should usually include all of the elements listed in paragraph (e). Some of these elements may be dispensed with if the court has limited the scope of the investigation, either by narrowing the issues that the custody investigator should address or by limiting the tasks that the investigator should perform. If the court has appointed a private custody investigator, for example, the court may agree to dispense with some of the elements of a full investigation in order to reduce the cost to the parties. In addition, for budget reasons, the presiding judge of the judicial district may enter an administrative order limiting the tasks that court custody investigators will routinely perform. Even when the court has requested a full investigation, the custody investigator has discretion to dispense with interviews or record checks that are clearly unwarranted in a particular case.

Paragraph (e) also indicates that the custody investigator should review relevant records of the child and other household members. Relevant records may include school records, medical records, alcohol or drug abuse treatment records, and records regarding incidents of domestic violence.

(Adopted by SCO 1377 effective April 15, 2000 and amended by SCO 1591 effective January 15, 2006)

Note to SCO 1591: “Confidential” in Civil Rule 90.6(d)(3) has the meaning set out in Administrative Bulletin No. 48 Adobe Acrobat PDF logo, Standard 6.F.2., and in Administrative Rule 37.5(c)(4).

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Rule 90.7. Appointment of Guardian Ad Litem in Child Custody Proceedings.

(a) When Guardian Ad Litem May Be Appointed. In an action under AS 25.20, 25.24, or 18.66 involving custody, support, or visitation of a child, the court may appoint a guardian ad litem for the child only when the court finds separate representation of the child's best interests is necessary, such as when the guardian ad litem may be expected to present evidence not otherwise likely to be available or presented, or the proceeding is unusually complex.

Commentary. -- AS 25.24.310 authorizes the court to appoint a guardian ad litem in any action involving custody, support, or visitation of a child. AS 25.24.310(c) states in part:

Instead of, or in addition to, appointment of an attorney under (a) of this section, the court may, upon motion of either party or upon its own motion, appoint an attorney or other person or the office of public advocacy to provide guardian ad litem services to a child in any legal proceeding involving the child's welfare. The court shall require a guardian ad litem when, in the opinion of the court, representation of the child's best interests, to be distinguished from preferences, would serve the welfare of the child.

Courts should not routinely appoint guardians ad litem in custody, support, and visitation proceedings. In most instances, the child's best interests are adequately protected and presented by the parties. In most contested proceedings in which professional input is warranted, a child custody investigator (whether public or private) should be appointed instead of a guardian ad litem. The child custody investigator can provide the court and the parties with an independent analysis of the dispute and may serve as a catalyst to settlement without adding another party to the proceeding.

(b) Qualifications.

(1) A guardian ad litem should possess knowledge, skill, experience, training, or education that allows the guardian ad litem to conduct a thorough and impartial investigation and effectively advocate for the best interests of the child. Specifically, the guardian ad litem should have an understanding of the following as appropriate to the case:

(A) child development from infancy through adolescence;

(B) impact of divorce and parental separation on a child;

(C) unique issues related to families involved in custody disputes;

(D) domestic violence and substance abuse and their impact on children;

(E) Alaska statutes, rules, and supreme court decisions relating to custody, support, and visitation;

(F) the ability to communicate effectively with children and adults; and

(G) other qualifications appropriate to the particular case.

Further, the guardian ad litem should possess the knowledge and skills to effectively negotiate settlements on behalf of the child and to effectively advocate the child's best interests in contested litigation.

(2) Upon request of a party, a guardian ad litem or prospective guardian ad litem shall provide to the parties a written summary of relevant education and experience.

(c) Appointment Order. An order appointing a guardian ad litem must include findings why the appointment is necessary and must set forth the role of the guardian ad litem, the duties to be performed by the guardian ad litem in the case, deadlines for completion of these duties to the extent appropriate, the duration of the appointment, and compensation as provided in paragraph (m). If the court denies a motion for appointment of a guardian ad litem, the court must make findings to explain the denial. An order appointing a guardian ad litem should authorize the guardian ad litem access, without further release, to all confidential and privileged records of the child, including but not limited to psychiatric records, psychological treatment records, drug and alcohol treatment records, medical records, evaluations, law enforcement records, and school records.

Commentary. -- If the court determines that the appointment of a guardian ad litem is appropriate in a particular case, the court may ask the parties to suggest individuals for appointment.

There is no right to a peremptory change of a guardian ad litem. Allegations that a guardian ad litem appointment is unnecessary, that a particular appointee is unqualified or otherwise unsuitable, or that an appointee is or has become biased should be addressed by trial courts through motion practice.

The appointment order should authorize the guardian ad litem to review confidential and privileged records pertaining to the child. To review records pertaining to a parent, the guardian ad litem must file a motion requesting access to those records unless the parent agrees to sign a release.

(d) Disclosure of Conflicts. The guardian ad litem shall disclose any relationships or associations between the guardian ad litem and any party which might reasonably cause the guardian ad litem's impartiality to be questioned. This disclosure must be made no later than 10 days after appointment.

(e) Role of Guardian Ad Litem. The guardian ad litem shall represent and advocate the best interests of the child. The court may appoint an attorney to advise or represent a non-attorney guardian ad litem if the court finds that legal advice or legal representation of the guardian ad litem is necessary to represent the child's best interests. The guardian ad litem shall be treated as a party to the proceeding for all purposes, except as otherwise provided in this rule.

Commentary. When custody is contested, the court has discretion to appoint a custody investigator, a guardian ad litem, and/or an attorney for the child. See AS 25.24.310(a), (c). The roles of a custody investigator, a guardian ad litem, and an attorney for the child are different and must be clearly distinguished:

(f) Duty to Investigate. The guardian ad litem shall investigate the pertinent facts of the case.

(1) The guardian ad litem shall review and consider any child custody investigation already conducted in the case and confer with the investigator. The guardian ad litem shall promptly conduct any further investigation necessary to carry out the order of appointment.

(2) If no child custody investigation has been done, the guardian ad litem shall either conduct an appropriate investigation or arrange for a custody investigation under Civil Rule 90.6. The investigation shall be conducted as soon as reasonably possible after the appointment.

Commentary. In developing a position, the guardian ad litem should usually solicit and receive input from professionals and other persons with experience or evidence related to the family, such as mental health professionals, teachers, day care providers, medical providers, close relatives of the child, and other adults residing in the home of either parent.

The guardian ad litem may move for an order requiring the child or one or both parents to undergo evaluation or assessment related to psychological, substance abuse, or other issues raised in the investigation.

Paragraph (m) requires a guardian ad litem to seek court approval before hiring a private custody investigator to conduct an investigation. If the parties cannot afford a private custody investigator, the court may appoint the court custody investigator to conduct the investigation. See Civil Rule 90.6(a).

(g) Contact with Child, Other Parties, and the Court.

(1) Contact with Child. The guardian ad litem may meet with the child as often as necessary to ascertain and represent the child's best interests. An attorney for a party shall not have independent contact with the child without the consent of the guardian ad litem or a court order. A party or attorney shall not arrange for mental health evaluations or assessments of the child without the consent of the guardian ad litem or a court order.

(2) Contact with Other Parties. A guardian ad litem may communicate with a party who is represented by an attorney unless the party's attorney has notified the guardian ad litem in writing that such communication should not occur outside the attorney's presence.

(3) Contact with Court. Unless all parties consent, a guardian ad litem shall not engage in ex parte communications with the court concerning a pending case except for scheduling and other administrative purposes when circumstances require.

(h) Trial or Hearing Brief. The court shall set a deadline for the guardian ad litem to file a trial or hearing brief. The brief must describe the guardian ad litem's investigation, including who was interviewed and what records were reviewed, analyze the facts that the guardian ad litem believes will be presented, explain the position taken by the guardian ad litem utilizing the applicable statutory factors, and address other matters the guardian ad litem believes to be appropriate. If there is a conflict between the guardian ad litem's position and the child's preference, that conflict must be disclosed in the brief.

Commentary. The guardian ad litem's brief cannot be treated as testimony or as evidence of any fact unless agreed to by the parties. Absent a stipulation, facts discussed in the guardian ad litem's brief must be proved at trial.

In many cases, the parties will not know the guardian ad litem's position or what facts the guardian ad litem has relied on until they receive the guardian ad litem's brief. Ideally, that brief should be due at least 30 days before the trial or hearing date so that the parties have sufficient time to prepare evidence in order to respond at trial. An early due date is also desirable because the guardian ad litem's brief often serves as a catalyst for settlement. At a minimum, the brief should be filed before the parties' briefs are due so that the parties can address the guardian ad litem's position in their briefs.

If there is a conflict between the guardian ad litem's position and the child's preference, the court may appoint a separate attorney to represent the child. The court should take this action only if the child's preference cannot be presented adequately by one of the parties. If the court appoints a separate attorney for the child, the court may either discharge the guardian ad litem or continue the guardian ad litem appointment to represent what the guardian ad litem believes to be in the child's best interests.

(i) Testimony.

(1) The guardian ad litem shall not testify at the trial or hearing unless:

(A) the testimony relates to an uncontested issue;

(B) the testimony relates to the nature and value of services rendered by the guardian ad litem in the case; or

(C) the testimony is necessary to present factual evidence on a material issue that is not available from another source.

(2) If the guardian ad litem intends to testify, the guardian ad litem shall file and serve notice of this intent with the trial or hearing brief. The notice must identify the subject of the guardian ad litem's testimony.

(3) Upon receiving notice that the guardian ad litem intends to testify, the court should consider whether the guardian ad litem can still effectively represent the best interests of the child. If not, the court may discharge the guardian ad litem, appoint another guardian ad litem, or appoint an attorney for the guardian ad litem or the child.

(4) If the guardian ad litem testifies, the guardian ad litem may be cross-examined as any other witness.

Commentary. Subparagraph (i)(1) reflects the principles of Alaska Rule of Professional Conduct 3.7(a), which under most circumstances prohibits an attorney from acting as an advocate in a proceeding in which the attorney is likely to be a witness.

In opening statements and closing arguments, a guardian ad litem is free to comment on the evidence and to suggest conclusions that the court should draw from the evidence. But the statements themselves are not and cannot be treated as testimony or evidence.

(j) Discovery.

(1) Discovery of Documents in Guardian Ad Litem's Possession. A party may obtain discovery of documents in the possession, custody, or control of the guardian ad litem, subject to the following limitations:

(A) the documents must be discoverable under Civil Rule 26(b)(1); and

(B) trial preparation materials as defined in Civil Rule 26(b)(3) are discoverable only as permitted by that rule.

(2) Discovery Regarding Guardian Ad Litem's Testimony. If the guardian ad litem has served notice that the guardian ad litem intends to testify, a party may obtain discovery from the guardian ad litem about the substance of this testimony.

(3) Other Inquiry. A party may obtain other discovery from a guardian ad litem only as permitted by the court upon a showing of good cause. The court may permit a party to question a guardian ad litem about the guardian ad litem's professional qualifications and experience or the guardian ad litem's actions in the case. But this inquiry must be conducted in the presence of the court.

(k) Duty to Maintain Confidentiality. The guardian ad litem shall not disclose communications made by the child or reveal information relating to the child, except as necessary to carry out the representation, unless:

(1) the guardian ad litem determines that disclosure is in the best interests of the child;

(2) disclosure would be permitted under Alaska Rule of Professional Conduct 1.6(b) as if the guardian ad litem were the child's lawyer;

(3) disclosure is required under paragraph (h) (duty to tell the court that child's preference differs from guardian ad litem's position); or

(4) disclosure is permitted by court order or by law.

Commentary. A guardian ad litem should advise the child that statements made by the child will ordinarily be kept confidential but may be disclosed if the guardian ad litem determines that disclosure is in the child's best interests and in the other circumstances described in this rule.

(l) Privileges.

(1) The guardian ad litem has a privilege to refuse to disclose and to prevent anyone other than the child from disclosing confidential communications made by the child. This privilege does not apply if disclosure of the communication is required by law or if the court finds there are compelling reasons to reveal the communication.

(2) The attorney-client privilege does not apply to confidential communications between the child and an attorney guardian ad litem.

Commentary. An attorney serving as a guardian ad litem does not act as legal counsel for the child but rather as a party to the proceeding. Therefore, the attorney-client privilege does not apply. But the policy behind the attorney-client privilege is equally compelling in the guardian ad litem-child relationship: to encourage the child to talk openly and candidly to the guardian ad litem so that the guardian ad litem can make the best possible determination about what is in the child's best interests. Therefore, this rule adopts a limited privilege for confidential communications between an attorney or non-attorney guardian ad litem and the child. It also allows the guardian ad litem to protect confidential communications made by the child to other persons.

(m) Compensation. The guardian ad litem, an attorney for a guardian ad litem, and expert witnesses used by the guardian ad litem will be compensated at a rate that the court determines is reasonable. Fees and costs for a private guardian ad litem will be divided equally between the parties unless the court finds good cause to change this allocation. The guardian ad litem must seek court approval before incurring extraordinary expenses, such as expert witness fees. The appointment order, or order authorizing the guardian ad litem to hire expert witnesses, must specify the hourly rate to be paid to the guardian ad litem, attorney, or expert witness, the maximum fee that may be incurred without further authorization of the court, how the fee will be allocated between the parties, and when payment is due. Unless otherwise ordered, bills must be submitted on a monthly basis and must state the total amount billed to date.

(Adopted by SCO 1377 effective April 15, 2000)

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Rule 90.8. Expedited Applications to Compel Correction of Any Error in Redistricting Plan.

(a) Scope. This rule applies to applications to the superior court under art. VI, sec. 11, Constitution of the State of Alaska, to compel the Redistricting Board to correct any error in its redistricting plan. This rule supersedes the other civil rules to the extent that they may be inconsistent with this rule.

(b) Application.

(1) Application to compel the Redistricting Board to correct any error in redistricting must be made within 30 days following the adoption of the final redistricting plan and proclamation by the Redistricting board.

(2) Service of the application shall be made on the Redistricting Board, the Office of the Attorney General, and the Office of the Lieutenant Governor.

(c) Expedited Proceeding. Applications under this rule shall be expedited, and shall have priority over all other matters pending before the court. The date for the court's decision shall be no later than 120 days prior to the statutory filing deadline for the first statewide election in which the challenged redistricting plan is scheduled to take effect.

(d) Record. The record in the superior court proceeding consists of the record from the Redistricting Board (original papers and exhibits filed before the board and the electronic record or transcript, if any, of the board's proceedings), as supplemented by such additional evidence as the court, in its discretion, may permit. If the court permits the record to be supplemented by the testimony of one or more witnesses, such testimony may be presented by deposition without regard to the limitations contained in Civil Rule 32(a)(3)(B). A paginated copy of the record from the Redistricting Board shall be filed in the supreme court at the same time it is filed in the superior court.

(e) Scheduling Conference. Within ten days of the application, the assigned judge shall hold a scheduling conference, which all parties must attend. Telephonic participation may be permitted at the judge's discretion. At the conference, the judge shall enter a scheduling order that addresses all matters appropriate in the circumstances of the case.

(f) Assignment. Cases shall be assigned by presiding judges and may be assigned across judicial district lines in coordination with other presiding judges and the administrative director.

(Adopted by SCO 1457 effective November 15, 2001)

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PART XIII. GENERAL PROVISIONS

Rule 91. Applicability of Civil Rules In General.

(a) Scire Facias -- Quo Warranto. The writs of scire facias and quo warranto, and proceedings by information in the nature of quo warranto, are abolished. Relief available under those forms or under the provisions of statutes may be obtained by appropriate action or by appropriate motion under the practice prescribed in these rules.

(b) Mandamus. The writ of mandamus is abolished. Relief heretofore available by mandamus as prescribed by statutes may be obtained by appropriate action or by appropriate motion under the practice prescribed in these rules.

(c) Administrative Subpoenas. These rules are applicable to proceedings in court to compel the giving of testimony or production of documents in accordance with subpoena issued or other authority exercised by an officer or agency of the state, except as otherwise provided by order of the court in the proceedings.

(Adopted by SCO 5 October 9, 1959; amended by SCO 49 effective January 1, 1963)

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Rule 92. Construction of Rules.

These rules are designed to provide for the efficient operation of the courts of the State of Alaska. If no specific procedure is prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules, the constitution, and the common law.

(Adopted by SCO 5 October 9, 1959; amended by SCO 49 effective January 1, 1963)

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Rule 93. Legal Effect of Rules--Statutes Superseded.

These rules are promulgated pursuant to constitutional authority granting rule making power to the supreme court, and to the extent that they are inconsistent with any procedural provisions of any statute not enacted for the specific purpose of changing a rule, shall supersede such statute to the extent of such inconsistency.

(Adopted by SCO 5 October 9, 1959; amended by SCO 49 effective January 1, 1963)

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Rule 94. Relaxation of Rules.

These rules are designed to facilitate business and advance justice. They may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work injustice.

(Adopted by SCO 5 October 9, 1959; amended by SCO 49 effective January 1, 1963)

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Rule 95. Penalties.

(a) For any infraction of these rules, the court, after providing reasonable notice and an opportunity to be heard, may withhold or assess costs or attorney's fees as the circumstances of the case and discouragement of like conduct in the future may require; and such costs and attorney's fees may be imposed upon offending attorneys or parties.

(b) [Applicable to cases filed before August 7, 1997.] In addition to its authority under (a) of this rule and its power to punish for contempt, a court may, after reasonable notice and an opportunity to show cause to the contrary, and after hearing by the court, if requested, impose a fine not to exceed $1,000.00 against any attorney who practices before it for failure to comply with these rules or any rules promulgated by the supreme court.

(b) [Applicable to cases filed on or after August 7, 1997.] In addition to its authority under (a) of this rule and its power to punish for contempt, a court may, after reasonable notice and an opportunity to show cause to the contrary, and after hearing by the court, if requested, impose a fine not to exceed $50,000.00 against any attorney who practices before it for failure to comply with these rules or any rules promulgated by the supreme court.

(Adopted by SCO 5 October 9, 1959; amended by SCO 49 effective January 1, 1963; by SCO 246 effective May 1, 1976; by SCO 1099 effective January 15, 1993; by SCO 1281 effective August 7, 1997; and by SCO 1643 effective October 15, 2007)

Note to SCO 1281: Paragraph (b) of this rule was amended by ch. 26, § 43, SLA 1997. According to § 55 of the Act, the amendment to Civil Rule 95 applies "to all causes of action accruing on or after the effective date of this Act." The amendment to Rule 95 adopted by paragraph 9 of this order applies to all cases filed on or after August 7, 1997. See paragraph 17 of this order. The change is adopted for the sole reason that the legislature has mandated the amendment.

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Rule 97. Title.

These rules may be known and cited as the Rules of Civil Procedure.

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Rule 98. Effective Date.

These rules become effective on the date to be established by order of the supreme court. They shall govern all civil actions and proceedings thereafter commenced and so far as just and practicable all proceedings then pending.

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Rule 99. Telephonic Participation in Civil Cases.

(a) Authorization for Telephonic, Video, or Internet Participation. The court may allow one or more parties, counsel, witnesses or the judge to participate telephonically in any hearing or deposition for good cause and in the absence of substantial prejudice to opposing parties. The court shall allow video or Internet testimony if the hearing or deposition involves the custody or visitation of a child of a parent who is deployed, as that term is defined in AS 25.20.095, at the request of the deployed parent. Authorization for a witness to telephonically participate in a deposition does not bar the witnesses’ testimony from being videotaped under Civil Rule 30.1; nor does it bar a party or attorney from being present at the site at which the witness is physically present.

(b) Procedure. The following procedure must be observed concerning telephonic participation in court hearings:

(1) Hearings involving telephonic participation must be scheduled in the same manner as other hearings.

(2) When telephonic participation is requested, the court, before the hearing, shall designate the party responsible for arranging the call and the party or parties responsible for payment of the call pursuant to Administrative Rule 48.

(3) Upon convening a telephonic proceeding, the judge shall:

(i) Recite the date, time, case name, case number, names and locations of parties and counsel, and the type of hearing;

(ii) Ascertain that all statements of all parties are audible to all participants;

(iii) Give instructions on how the hearing is to be conducted, including notice that in order to preserve the record speakers must identify themselves each time they speak.

(4) A verbatim record must be made in accord with Administrative Rule 35.

(c) The right of public access to court proceedings must be preserved in accordance with law.

(Added by SCO 623 effective June 15, 1985; amended by SCO 790 effective March 15, 1987; by SCO 922 effective January 15, 1989; and by SCO 1733 effective June 4, 2010)

Note: Chapter 44, section 4, SLA 2010 (HB 334), effective June 4, 2010, amended Civil Rule 99 relating to child custody, modification, and visitation standards for a military parent, as reflected in section 1 of this Order. The changes to Civil Rule 99 are adopted for the sole reason that the legislature has mandated the amendments.

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Rule 100. Mediation and Other Forms of Alternative Dispute

Resolution.

(a) Application. At any time after a complaint is filed, a party may file a motion with the court requesting mediation for the purpose of achieving a mutually agreeable settlement. The motion must address how the mediation should be conducted as specified in paragraph (b), including the names of any acceptable mediators. If domestic violence has occurred between the parties and mediation is re-requested in a matter covered by AS 25, mediation may only be ordered when permitted under AS 25.20.080, AS 25.24.060, or 25.24.140. In matters not covered by AS 25, the court may order mediation in response to such a motion, or on its own motion, whenever it determines that mediation may result in an equitable settlement. In making this determination, the court shall consider whether there is a history of domestic violence between the parties which could be expected to affect the fairness of the mediation process or the physical safety of the domestic violence victim. Mediation may not be ordered between the parties to, or in, a case filed under AS 18.66.100 - 18.66.180.

(b) Order. An order of mediation must state:

(1) the name of the mediator, or how the mediator will be decided upon;

(2) any changes in the procedures specified in paragraphs (d) and (e), or any additional procedures;

(3) that the costs of mediation are to be borne equally by the parties unless the court apportions the costs differently between the parties; and

(4) a date by which the initial mediation conference must commence.

(c) Challenge of Mediator. Each party has the right once to challenge peremptorily any mediator appointed by the court if the "Notice of Challenge of Mediator" is timely filed pursuant to Civil Rule 42(c).

(d) Mediation Briefs. Any party may provide a confidential brief to the mediator explaining its view of the dispute. If a party elects to provide a brief, the brief may not exceed five pages in length and must be provided to the mediator not less than three days prior to the mediation. A party's mediation brief may not be disclosed to anyone without the party's consent and is not admissible in evidence.

(e) Conferences. Mediation will be conducted in informal conferences at a location agreed to by the parties or, if they do not agree, at a location designated by the mediator. All parties shall attend the initial conference at which the mediator shall first meet with all parties. Thereafter the mediator may meet with the parties separately. Counsel for a party may attend all conferences attended by that party.

(f) Termination. After the initial joint conference and the first round of separate conferences if separate conferences are required by the mediator, a party may withdraw from mediation, or the mediator may terminate the process if the mediator determines that mediation efforts are likely to be unsuccessful. Upon withdrawal by a party or termination by the mediator, the mediator shall notify the court that mediation efforts have been terminated.

(g) Confidentiality. Mediation proceedings shall be held in private and are confidential. The mediator shall not testify as to any aspect of the mediation proceedings. Evidence of conduct or statements made in the course of court-ordered mediation is inadmissible to the same extent that conduct and statements are inadmissible under Alaska Rule of Evidence 408. This rule does not relieve any person of a duty imposed by statute.

(h) Dismissal. If the mediation is successful, the party requesting mediation shall prepare a stipulation for dismissal which dismisses all or such portions of the action as have been concluded by mediation as agreed upon at the mediation.

(i) Other Forms of Alternative Dispute Resolution.

(1) Early Neutral Evaluation. Parties or the court may use the procedure set out in this rule to refer a case to early neutral evaluation instead of mediation. All provisions of this rule apply to a case in which early neutral evaluation has been ordered under paragraph (a).

(2) Arbitration. Parties may stipulate to arbitration without further order of the court.

(3) Settlement Conference. At any time after a complaint is filed, a party may file a motion with the court requesting a settlement conference with a judge for the purpose of achieving a mutually agreeable settlement. The court may order a settlement conference in response to such a motion or on its own motion.

(4) Local Dispute Resolution. Parties may agree to resolve disputes, subject to court approval, by referring them to tribal courts, tribal councils, elders' courts, or ethnic organizations.

(Added by SCO 1116 effective July 15, 1993; amended by SCO 1130 effective July 15, 1993; by SCO 1269 effective July 15, 1997; by SCO 1318 effective July 15, 1998; and by SCO 1469 effective October 15, 2002)

Note to SCO 1269: Civil Rule 100(a) was amended by 69 ch. 64 SLA 1996.

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Rev. 15 October 2014
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