Grober v. State, Dept. of Revenue, Child Support Enforcement Div., ex rel. C.J.W

• Decision Date: 08 May 1998
• Docket Number: No. S-7353,S-7353
• Citation: 956 P.2d 1230
• Parties: Marc GROBER, Appellant, v. STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION, ex rel, C.J.W., Appellee.
• Court: Alaska Supreme Court

Page 1230

956 P.2d 1230

Marc GROBER, Appellant, v. STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION, ex rel, C.J.W., Appellee.

No. S-7353.

Supreme Court of Alaska.

May 8, 1998.

James Vollintine, Anchorage, for Appellant.

Terisia K. Chleborad, Assistant Attorney General, Anchorage, Bruce M. Botelho, Attorney General, Juneau, for Appellee.

Before COMPTON, C.J., and MATTHEWS, EASTAUGH, FABE and BRYNER, JJ.

MATTHEWS, Justice.

I. INTRODUCTION

A complaint to establish the paternity of then ten-year old C.J.W. was filed against Marc Grober. Grober argues that the action was time barred. Because actions are tolled during a child's minority, we hold that the action was timely filed. Grober also appeals the order requiring him to submit to blood testing, and the court's retroactive application of a newly enacted statute. We hold that Grober's due process rights were not violated, and that the court did not err in retroactively applying a procedural statute. Thus, we affirm.

II. FACTS AND PROCEEDINGS

D.W. gave birth to C.J.W. on February 16, 1982. D.W. claims that she had unprotected sexual intercourse with Grober nine months before C.J.W. was born, and that she did not have intercourse with anyone else at that time. Grober denies having intercourse with D.W. in 1981.

D.W. wished to establish C.J.W.'s paternity when C.J.W. started asking questions about his father. She sought help from the Child Support Enforcement Division (CSED) in May 1992. CSED filed a paternity action against Grober on August 11, 1992, and amended its complaint in September 1992. Grober denied the allegations in the complaint, and filed a motion to dismiss. The superior court denied the motion.

Presiding Judge Richard Savell had previously issued a standing order in January 1991, pursuant to Alaska Civil Rule 35 and AS 25.20.050(e), ordering the mother, child and putative father to submit to blood tests in any paternity action in which the State is a party and the putative father has denied paternity. In August 1992, a copy of this order was served on Grober along with the summons and complaint. Grober filed a motion to stay blood testing, arguing that the standing order violated his constitutional rights by permitting searches and seizures without a finding of probable cause, and that the testing should be stayed until after the motion to dismiss had been decided. Superior Court Judge Mary E. Greene stayed the blood testing for two months to consider the motion to dismiss. Upon denial of the motion to dismiss, Grober was required to submit to blood testing pursuant to the standing order.

Prior to trial, the judge ruled that AS 09.25.051, ¹ as amended by Chapter 7, SLA 1995, effective July 11, 1995, applied to the present case. Grober argued that it did not apply because it became effective after the case was filed, and because the legislature did not include a provision expressly making the bill retroactive. The trial court found that issues regarding admissibility of evidence do not arise until the evidence is proffered, and thus, no issue of retroactivity existed. Alternatively, the trial court found that if an issue of retroactivity did exist, the statute would still apply, since it is procedural and does not affect substantive rights.

The case was tried before the judge. The judge found that the evidence gave rise to a presumption of paternity as set out in AS 25.20.050(d). Grober, therefore, had the burden to rebut the presumption with clear and convincing evidence. The judge found that Grober had not met his burden, and declared that Grober is C.J.W.'s father.

Grober appeals.

III. DISCUSSION

A. Does the Statute of Limitations for Paternity Actions Toll During the Child's Minority?

Alaska Statute 09.10.140 provides:

(a) If a person entitled to bring an action mentioned in this chapter is at the time the cause of action accrues ... (1) under the age of majority, ... the time of a disability identified in (1) ... of this subsection is not a part of the time limit for the commencement of the action. Except as provided in (b) of this section, the period within which the action may be brought is not extended in any case longer than two years after the disability ceases.

C.J.W. was under the age of majority when the cause of action arose. Therefore, the statute of limitations tolls during his minority. See Truesdell v. Halliburton Co., 754 P.2d 236, 238 (Alaska 1988) (rejecting the argument that AS 09.10.140 did not apply to an action for which AS 09.10 provided a time limitation; either the action was tolled, or AS 09.10 did not apply and therefore the action would have no time limitation).

Grober makes two arguments to explain why the tolling provision should not apply. ² First, he argues that C.J.W. is not "authorized to bring a paternity action"; only CSED is authorized. This is incorrect.

Alaska Statute 25.20.050 refers to judicial proceedings for the determination of paternity, but does not delimit the plaintiffs in such proceedings. Subsection .050(a) provides in relevant part: "A child born out of wedlock is legitimated and considered the heir of the putative parent when ... (3) the putative parent is judged by a superior court, upon sufficient evidence, to be a parent of the child." Subsection (e) assumes that the State may be a party without implying that the State is the only possible plaintiff, and subsection (f) similarly assumes that CSED may be a party without implying that the agency is the only possible plaintiff. ³ Given that the potential plaintiffs in paternity actions are not delimited by statute, we join those jurisdictions which hold that a child, upon reaching the age of majority, may bring a paternity action, and that prior to the age of majority a parent or guardian ad litem may maintain a paternity action on behalf of a child. ⁴

Further, CSED is not limited to appearing in its own name or that of the State, but may appear on behalf of the child or the child's mother or legal custodian. Thus, AS 25.27.040(a) provides: "The agency may appear on behalf of minor children or their mother or legal custodian or the state and initiate efforts to have the paternity of children born out of wedlock determined by the court."

Grober next argues that C.J.W. was not under a disability due to his minority because CSED could file a paternity action. This court has previously addressed a similar argument. In Hanson v. Kake Tribal Corp., 939 P.2d 1320 (Alaska 1997), Kake argued that the tolling provision does not apply where a minor has a custodian who can bring an action on the minor's behalf. This court stated:

[Alaska Statute 09.10.140(a) ] applies to minors, even those with guardians. While it is true that a custodian may sue on behalf of a minor, who is in turn not legally able to sue, a similar state of affairs exists for injured minor children. Their parents may sue for them....

... It can be regarded as fundamentally unfair to a minor to saddle the minor with the consequences of a custodian's neglect.

Id. at 1326 (emphasis added) (citing Haakanson v. Wakefield Seafoods, Inc., 600 P.2d 1087, 1090-91 (Alaska 1979)). Because a minor for whom CSED neglects to act may suffer the same unfairness as that emphasized in Hanson, we hold that the tolling provision applies where CSED can bring an action on behalf of a minor. ⁵

Grober would distinguish this case because CSED must take an action to establish paternity. AS 25.27.020(a)(11) ("The agency shall ... establish ... through court action, the paternity of a child."). However, the Hanson rule is designed to protect children from the consequences of the negligence of those entitled to take the action on their behalf. Such individuals may negligently fail to file an action, even where they are under a duty to do so. A rule that tolls the limitations period if the custodian is entitled to take the action, but does not toll the cause of action where the custodian has a duty to take the action, does not protect the minor from the "consequences of a custodian's neglect."

B. Did the Standing Order Requiring Grober to Submit to Blood Tests Violate His Constitutional Rights?

Grober argues that the standing order requiring putative fathers to submit to blood tests in any action where the State is a party and the putative father denies paternity is unconstitutional. ⁶ We agree. However, the use of the standing order in this case was harmless; Grober's rights were not violated.

1. The standing order violates a putative father's due process rights.

Civil Rule 35 permits the court to order a party to submit to a physical or mental examination, including a blood test, if the mental or physical condition of the party is "in controversy" and there is "good cause shown." An order may only be entered upon motion and "upon notice to the person to be examined and to all parties." Alaska R. Civ. P. 35. The United States Supreme Court has found the federal counterpart to Civil Rule 35 to be "free of constitutional difficult[ies]," even when applied to defendants. Schlagenhauf v. Holder, 379 U.S. 104, 114, 85 S.Ct. 234, 240, 13 L.Ed.2d 152 (1964).

The standing order was entered pursuant to Civil Rule 35 and AS 25.20.050. However, it does not meet the requirements of Civil Rule 35. There was no motion, no notice to Grober, and no determination that the matter was both "in controversy" and with "good cause."

These deficiencies violate both the federal and state constitutions. In Etheredge v. Bradley, 502 P.2d 146, 151-153 (Alaska 1972), we held that summary property attachment pursuant to Civil Rule 89 violated article I, section 7 of the Alaska Constitution and the due process clause of the Fourteenth Amendment of the Federal Constitution. Procedural due process requires that, before a party can be deprived of a property right which is not de minimis, he must be given notice and a hearing held at a meaningful time, defined as a time when deprivation...