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McGee v. McGee3/12/1999
I. INTRODUCTION
The decree dissolving Debra and Ken McGee's marriage said nothing about possible individual fishing quotas (IFQs) and quota shares. When an IFQ program was implemented soon after the dissolution, Ken applied for and received all the shares. Because marital fishing activity made both parties eligible to receive the shares, Debra successfully moved for relief from the dissolution decree. Concluding that "extraordinary circumstances" justified Alaska Civil Rule 60(b)(6) relief, we affirm in Case No. S-7966.
Debra also brought a separate tort suit against Ken, alleging that his IFQ application misrepresented facts that made him eligible to receive all the shares. The superior court dismissed the tort suit on the ground it was barred by the Rule 60(b) proceedings. Because Debra could not have asserted her tort claims in the dissolution and Rule 60(b) proceedings, we hold that res judicata does not apply, and reverse and remand in Case No. S-7965. Since the Rule 60(b) relief collaterally estops Debra from relitigating her quota shares claim, only her punitive damages claim remains for litigation on remand.
II. FACTS AND PROCEEDINGS
A. Facts
Ken and Debra McGee married in 1978. They bought the F/V Tamarack in 1980, and fished for salmon, halibut, and sablefish (black cod) in Southeast Alaska. Both signed the promissory note that financed the vessel's purchase, and the Coast Guard Certificate of Ownership of Vessel listed them both as equal owners. Both participated actively, but differently, in the fishing business.
They filed for dissolution in March 1993. Their property settlement divided their marital assets. The petition listed their house (valued at $150,000) as their largest asset, and the F/V Tamarack (valued at $80,000) as their third largest. The boat was listed as joint property to be awarded to Ken. The property settlement did not discuss quota shares or individual fishing quotas. The court dissolved the marriage in April 1993.
In December 1993 the National Marine Fisheries Service (NMFS) implemented a system of individual fishing quotas in Alaska's halibut and sablefish fisheries. Previously, anyone with a boat and commercial license could participate in the halibut fishery. But under the IFQ system, only fishers possessing quota shares could fish for halibut and sablefish, making the shares very valuable. A quota shares applicant had to show that he or she had owned or leased a vessel that made legal and verifiable landings of halibut or sablefish in the IFQ regulatory areas during 1988, 1989, or 1990. The base years are 1984 through 1990 and the qualifying years are 1988, 1989, and 1990. During all base and qualifying years, Debra co-owned the F/V Tamarack with Ken.
The NMFS mailed Ken a preprinted "Request for Application for Quota Share Form for Individuals" in December 1993. Debra never received this mailing, and Ken never advised Debra that he had received it. Ken signed the form and submitted it with a form identifying himself as the owner of the F/V Tamarack.
The NMFS then sent Ken preprinted halibut and sablefish quota share applications that listed his eligible dates as February 3, 1984, to December 31, 1991, and his percent of interest in the F/V Tamarack's activities as 100 percent. This was accurate as of 1994, but not as of the listed eligible dates. Despite this discrepancy, Ken signed the form in June 1994 and returned it to the NMFS. The NMFS issued Ken all the quota shares.
Debra did not apply for quota shares and therefore received none. She alleges that she first learned in October 1994, after the application period ended, that the
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