Defendant's Attorney:

Description: Anchorage, Alaska family law lawyers represented the parties in a property dispute arising out of their divorce.


A divorcing couple settled their property dispute by executing a settlement agreement that included a litigation waiver. The superior court accepted the settlement five months later. The woman subsequently sued her former husband, alleging tort claims based upon actions taken in the months between the time the agreement was executed and when it was accepted. The superior court granted the man's motions to
dismiss and for summary judgment. The woman appeals. We agree with the superior court that one of the torts alleged by the woman does not exist in Alaska, and we affirm the superior court's order dismissing that claim. But because the settlement agreement was effective between the parties when signed, even though it was subject to court approval, we reverse the superior court's grant of summary judgment regarding the other torts and remand for further proceedings on those issues.



Cynthia Notti and David Hoffman married in 2012. Their relationship was tumultuous; Hoffman repeatedly initiated divorce proceedings. After two reconciliations Hoffman initiated divorce proceedings for a third time in November 2015. The superior court scheduled a hearing in the matter for May 2016. In December 2015 Notti and Hoffman reached an agreement to settle the division of marital property. The settlement agreement also contained a litigation waiver. The waiver stated:

Each party warrants that he or she, and any of his or her respective heirs, personal representatives or assigns, releases and discharges the other party, his or her respective heirs, personal representatives and assigns, from any and all claims and demands of every kind, nature and description, whether sounding in tort, contract, or equity, whether past, present, or future. The parties acknowledge that this agreement is intended to be a full, complete, and final settlement and release, and that neither party will at any time hereafter make or attempt to make any further claim against the other party, whether known or unknown at the time this agreement is executed.

Notti and Hoffman each signed the agreement, which was "[e]xecuted at Anchorage, Alaska this 31st day of December 2015" before a notary.

Hoffman asserts that he and Notti "continued to communicate amicably" after the settlement. Notti disputes this, claiming that Hoffman continued to contact her seeking sex, which she refused unless he was "fully" committed to reconciling and "all in" on the marriage.

On March 28, 2016 Notti and Hoffman went to dinner and then had sex. Hoffman claims Notti initiated the sexual encounter. Notti disagrees, asserting that she agreed to engage in sexual relations only after Hoffman told her he was "all in" and put his wedding ring back on his finger. The following morning, Hoffman drove Notti to the airport for a previously planned vacation.

Notti returned from her trip on April 10; Hoffman picked her up from the airport. Notti claims that Hoffman informed her that he had not meant what he said on March 28, that he did not intend to reconcile, and that their encounter was "just sex" that "didn't mean anything" to him.

In the weeks before their May divorce hearing, Notti repeatedly told her attorney that Hoffman had "raped" her and that she believed she could sue him. Notti's attorney made Hoffman's aware of the rape allegation, but did not discuss any course of action based on the allegation. The settlement was modified to address concerns raised during the attorneys' discussions, but no changes were made with respect to the litigation waiver.

The settlement agreement, with Notti's and Hoffman's December 2015 signatures, was presented to the court at the May hearing. The parties advised the court that as a result of their continued discussions some modifications were necessary. The modifications were then made on the record; none were made to the litigation waiver.

The superior court accepted the settlement agreement, finding that "[t]he purpose of [the] agreement is to resolve all of the issues in this case" and that "the parties' agreement will accomplish that purpose." The court concluded that, as modified, the agreement was a "fair and equitable way to divide the marital estate" and ordered the

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estate divided as indicated in the agreement. Before entering the decree of divorce, the court specifically found that "[b]oth parties had sufficient time to think about [the agreement] and sufficient information" regarding "their rights and responsibilities under the agreement" and "the legal consequences of what they were doing."...

Outcome: We AFFIRM the superior court's order to dismiss the claim of 'rape by fraud.' But we REVERSE the superior court's grant of summary judgment and REMAND to the superior court for determination of whether Notti's remaining claims are barred by the litigation waiver.

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