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Grober v. Alaska Child Support Enforcement Division (5/8/98), 956 P 2d 1230

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.


MARC GROBER,                  )
                              )    Supreme Court No. S-7353
             Appellant,       )
                              )    Superior Court No.
     v.                       )    4FA-92-1419 CI
C.J.W.,                       )
             Appellee.        )    [No. 4981 - May 8, 1998]

          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                      Mary E. Greene, Judge.

          Appearances: James Vollintine, Anchorage, for
Appellant.  Terisia K. Chleborad, Assistant Attorney General,
Anchorage, Bruce M. Botelho, Attorney General, Juneau, for

          Before:  Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.  

          MATTHEWS, Justice.

          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.
          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 inter-

course 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 allega-

tions 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 constitu-

tional 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, [Fn.
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.
     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. [Fn. 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 plain-

tiffs 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. [Fn. 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. [Fn. 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. [Fn.
          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
     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 unconstitu-

tional. [Fn. 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 (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 can still be prevented. 
          An intrusive procedure such as blood testing requires no
less. [Fn. 7]  Before a blood test may be ordered, there must be
notice to the party and an opportunity to be heard.  The party
seeking the order must make a showing that there is reasonable
cause to order the testing.  See Schlagenhauf, 379 U.S. at 119-21. 
The opposing party must be afforded an opportunity to challenge the
motion.  If, after the opposing party has responded, his physical
or mental condition is still in controversy and there is reasonable
cause to order the testing, the test may be ordered.
          A hearing will not always be required.  A plaintiff who
seeks redress for personal injury places her physical condition in
controversy and provides good cause to enter an order.  Sibbach v.
Wilson & Co., 312 U.S. 1 (1941).  A defendant who affirmatively
"asserts his mental or physical condition as a defense to a claim,
such as, for example, where insanity is asserted as a defense to a
divorce action,"is likewise subject to an examination under Civil
Rule 35 based upon the pleadings alone.  Schlagenhauf, 379 U.S. at
          Neither of these exceptions is present in the instant
case.  Grober denied paternity, but did not affirmatively raise a
defense which placed his physical condition in controversy. [Fn. 8]
          2.   The reliance on the standing order was harmless.
          Grober's due process rights were not violated by the
superior court's reliance on the standing order.  D.W.'s affidavit
stating that Grober is C.J.W.'s father constituted a showing of
reasonable cause to order the blood testing.  Grober successfully
obtained a stay of the blood testing while the superior court
considered his motion to dismiss.  The motion was denied.  Grober's
evidence did not defeat D.W.'s showing of reasonable cause.  After
denying the motion to dismiss, the court did not enter a "new"
order for blood testing, because the standing order was still in
effect.  The constitutional standard was satisfied.
     C.   Does AS 09.25.051 Apply to Paternity Actions Filed before
Its Effective Date?

          We have held that scientific evidence cannot be admitted
without a showing that it is "generally accepted in the scientific
community."  See Contreras v. State, 718 P.2d 129 (Alaska 1986). 
Alaska Statute 09.25.051 eliminated this requirement for DNA
evidence, requiring only that it be "scientifically valid."  This
change became effective after the present case was filed, but
before it went to trial.  The trial court found that the statute
was applicable to this case because it affected only procedural
          "Procedural changes in the law which do not affect
substantive rights may be applied retroactively."  Rice v. Rice,
757 P.2d 60, 61 (Alaska 1988).  Alaska Statute 09.25.051 effects
only a procedural change.  Id.; Matanuska Maid, Inc. v. State, 620
P.2d 182, 187 (Alaska 1980).  Grober's argument that the statute
increases his liability may be correct in the sense that any change
in any rule has the potential to change the result in litigation. 
The change is not a prohibited retroactive change, however, unless
it changes the norms governing out-of-court conduct.  See Landgraf
v. USI Film Prod., 511 U.S. 244 (1994).  As it clearly does not do
so, the court did not err in applying the current statute.
     D.   The Trial Court Did Not Err by Adopting the Scientific
Evidence Presented by CSED.
          Both experts agree that the procedures used in DNA
testing are generally accepted in the scientific community.  The
defendant's expert "agreed he could find nothing to criticize in
the laboratory's performance"of the testing procedures.  The
experts disagreed as to the correct paternity indices and
probability of paternity.  Having reviewed the transcripts,
exhibits and briefs, we conclude that the trial court did not err
in its conclusion that the evidence was sufficient to give rise to
a presumption of paternity. [Fn. 9]  This conclusion is supported
by Dr. Cutter's testimony and is not clearly erroneous.
          Grober argues that the court erred in adopting the
State's scientific evidence because he is an Ashkenazic Jew and
therefore the paternity index should not have been based on
frequencies for North American Caucasians in general.  He argues
that the paternity analysis conducted in this case failed to
compare his genetic markers solely to those of the Ashkenazic Jews.
Dr. Cutter testified that population substructuring is not statist-

ically significant for the locus tested, and is not statistically
significant if numerous loci are tested.  This is consistent with
the academic material presented to the trial judge.  However, the
judge reduced the calculations by one and two orders of magnitude
in reaching her conclusion.  Grober's evidence directly supports
the conclusion that there will be no greater margin of error than
two orders of magnitude.
          The court discarded the paternity indices for the locus
which Grober's expert stated was inconclusive.  This was not error. 
Dr. Cutter testified that one mismatch would not exclude paternity,
and that it was accepted practice in paternity testing to require
two mismatches to find an exclusion.  Dr. Frelinger was not
familiar with the protocols concerning how many mismatches are
required before an exclusion is declared.  Thus, even accepting Dr.
Frelinger's testimony that the results of one locus were
inconclusive, this does not establish an exclusion of paternity. 
Dr. Cutter also testified why it was not inconclusive.
          Grober's remaining arguments are unpersuasive.  We
conclude that the trial court did not err in its calculation of the
probability of paternity based on the scientific evidence
     E.   Did the Trial Court Err in Its Evaluation of the

          Grober believes that the trial court erred when it found
that the prior probability of paternity, without reference to the
scientific evidence, was forty percent.  He argues that if the
prior probability was zero or ten percent, then the appropriate
equation (using his expert's interpretation of the blood testing)
would produce a probability of paternity of only 91.74 percent. 
This would be insufficient to raise a presumption of paternity.  
          This argument fails.  The judge found that it was more
likely than not that D.W. and Grober had unprotected sexual inter-

course around the time of conception.  The evidence concerning
whether D.W. and Grober had sexual intercourse was in conflict.
[Fn. 10]  We defer to the trial court's determination of
credibility.  Alaska R. Civ. P. 52(a); Wasserman v. Bartholomew,
923 P.2d 806, 817 n.29 (Alaska 1996).
          Had D.W. engaged in intercourse with only Grober, the
prior probability of paternity would be one hundred percent.  The
judge held that the prior probability of paternity was forty
percent, because D.W. was dating another man at the same time.  If
this is error, it benefits Grober.  If D.W. in fact had intercourse
with both men around the time of conception, it would be equally
likely that either of the men is C.J.W.'s father, producing a prior
probability of fifty percent that Grober is C.J.W.'s father.  
          Next, Grober argues that the court incorrectly determined
that he did not produce clear and convincing evidence that he is
not C.J.W.'s father.  Having reviewed the record, we do not believe
that this finding is clearly erroneous.
          Grober's remaining argument that CSED did not have
standing to bring this action is meritless.  CSED does not need to
plead that the action is in the child's best interest, nor does it
need to seek a support order in a paternity action.  See AS
          We AFFIRM the judgment below.


Footnote 1:

     AS 09.25.051 provides:

               (a) In a civil action or proceeding,
evidence of a DNA profile is admissible to prove or disprove any
relevant fact if the court finds that the technique underlying the
evidence is scientifically valid.  The admission of the DNA profile
does not require a finding of general acceptance in the relevant
scientific community of DNA profile evidence.
               (b) In this section, 
               (1) "deoxyribonucleic acid"means the
molecules in all cellular forms that contain genetic information in
a patterned chemical structure for each individual;
               (2) "DNA profile"
                    (A) means an analysis of blood,
semen, tissue, or other cells bearing deoxyribonucleic acid
resulting in the identification of the individual's patterned
chemical structure of genetic information;
                    (B) includes statistical population
frequency comparisons of the patterned chemical structures
described in (A) of this paragraph.

Footnote 2:

     "A ruling on the appropriate statute of limitations is a
question of law,"subject to de novo review.  Jenkins v. Daniels,
751 P.2d 19, 21 (Alaska 1988).

Footnote 3:

     These subsections provide in relevant part: "(e) On request of
a party in an action in which paternity is contested and to which
the state is a party, the court shall order . . . ."; "(f) If the
child support enforcement agency is a party in an action in which
paternity is contested, the agency shall request . . . ."

Footnote 4:

     The right has been grounded in paternity and filiation
statutes, see, e.g., J.W.L. by J.L.M. v. A.J.P., 682 N.E.2d 519
(Ind. 1997) (child); Palmer v. Mangum, 338 So. 2d 1002 (Miss. 1976)
(same); Sutherland v. Hurin, 605 P.2d 1133 (Mont. 1980) (same);
Wright v. Gann, 217 S.E.2d 761 (N.C. App. 1975) (same); R.V.S. v.
S.D.M. by T.Y., 882 P.2d 1217 (Wyo. 1994) (same); Wong v. Young,
181 P.2d 741 (Cal. App. 1947) (child or guardian ad litem); 
Jefferson County Dep't of Soc. Servs. v. D.A.G., 607 P.2d 1004
(Colo. 1980) (same); Throndset v. J.R., 302 N.W.2d 769 (N.D.
1981)(same); see also Uniform Parentage Act sec. 6; Uniform Act on
Paternity sec. 2, and in common law, see, e.g., Spada v. Pauley,
N.W.2d 746 (Mich. App. 1986) (child); Craig v. Shea, 168 N.W. 135
(Neb. 1918) (same); Wynn v. Wynn, 587 S.W.2d 790 (Tex. App. 1979)
(same); Johnson v. Norman, 421 N.E.2d 124 (Ohio 1951) (child or
guardian); Kaur v. Singh Chawla, 522 P.2d 1198 (Wash. App. 1974)
(child or guardian ad litem).  We recognize that some jurisdictions
have held that the child does not have the right to establish
paternity.  See, e.g., J.M.S. v. Benson, 297 N.W.2d 18 (Wis. 1980)
(holding that mother must bring complaint to district attorney, who
has sole discretion as to whether to proceed); Cessna v.
Montgomery, 344 N.E.2d 447 (Ill. 1976) (mother only); Thompson v.
Thompson, 404 A.2d 269 (Md. 1979) (same).

Footnote 5:

     Grober argues that CSED had notice of C.J.W.'s "illegitimacy
shortly after his birth,"and therefore C.J.W. was not under a
disability.  However, the case law does not distinguish between
custodians who are aware that there is a cause of action and those
who are not.  See Hanson, 939 P.2d at 1325-26.  The rule is
designed to protect children from the negligence of those who could
take the action for them; it is not a modified version of the
discovery rule.  

Footnote 6:

     We apply our independent judgment to questions of
constitutional law.  Snyder v. State, 930 P.2d 1274, 1277 n.1
(Alaska 1996). 

Footnote 7:

     To determine what "due process"is required, "[t]he
conflicting interests must . . . be balanced to determine whether
or not those interests supporting the contested procedures outweigh
those opposed."  Etheredge, 502 P.2d at 155 (Boney, C.J., dissent-

ing).  In a paternity action, there is no threat that the defen-

dant, upon receiving notice, will destroy evidence, thereby requir-

ing a procedure which orders testing without notice to the
defendant.  See id. at 152 (distinguishing Sniadach v. Family
Finance Corp., 395 U.S. 337 (1969), on the basis that a defendant
cannot alienate future wages, but can drain his checking account). 
The balance tips in favor of the putative father; the State has no
interest which would be harmed by giving notice to the defendant,
and the defendant has a strong interest in preventing an
unjustifiable intrusion into his privacy.

Footnote 8:

     Grober also argues that the order violated his Fourth
Amendment right to be free from unreasonable searches and seizures. 
In Schmerber v. California, 384 U.S. 757, 767 (1966), police
officers required a person charged with driving under the influence
to submit to a blood alcohol test over his objection.  The Court
"recognized '[t]he security of one's privacy against arbitrary
intrusion by the police' as being 'at the core of the Fourth
Amendment.'"  Id.  In the present case, the blood test was part of
civil discovery.  Therefore, the judge did not need to determine
that "probable cause"or "individualized suspicion"existed, as
those are standards required to constrain police activity.  See
Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 624
(1989); Delaware v. Prouse, 440 U.S. 648, 654 (1979); United States
v. Martinez-Fuerte, 428 U.S. 543, 560-61 (1976).  Properly executed
civil discovery will generally comport with the "reasonableness"
requirement of the Fourth Amendment.  The order for blood testing
in this case was reasonable; D.W. offered her sworn statement that
Grober is C.J.W.'s father, and the test was stayed until after the
court decided Grober's motion to dismiss.  

Footnote 9:

     This court applies a clearly erroneous standard of review when
reviewing findings of fact and defers to the trial court's
determination of credibility.  Alaska R. Civ. P. 52(a); Wasserman
v. Bartholomew, 923 P.2d 806, 817 n.29 (Alaska 1996); Lee v. Cox,
790 P.2d 1359, 1367 (Alaska 1990).

Footnote 10:

     Grober presented the testimony of Ms. Riley.  Riley is the
wife of the client Grober worked for during the period of
conception.  Her testimony indicated that she did not believe that
Grober went to Anchorage in May 1981.  Grober argues that the trial
court erred by not believing this testimony and by holding that
Grober engaged in sexual intercourse with D.W. in Anchorage in May
1981.  The trial judge was not clearly erroneous in finding that it
was unlikely that Riley could accurately remember if her husband's
lawyer traveled to Anchorage fourteen years earlier.