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Rubright v. Arnold (2/19/99), 973 P 2d 580
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.
THE SUPREME COURT OF THE STATE OF ALASKA
STEPHEN C. RUBRIGHT, )
) Supreme Court No. S-7010
) Superior Court No.
v. ) 3AN-92-8196 CI
ADELINE M. ARNOLD, ) O P I N I O N
Appellee. ) [No. 5083 - February 19, 1999]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Larry D. Card, Judge.
Appearances: William T. Ford, Anchorage, for
Appellant. Mary Louise Molenda, Ruskin &
Molenda, Anchorage, for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
MATTHEWS, Chief Justice.
BRYNER, Justice, with whom COMPTON, Justice, joins,
Adeline Arnold sued Stephen Rubright, claiming that
Stephen is the biological father of her son Christopher. She
sought a judgment for past and future child support. The superior
court entered a final judgment which found Stephen to be the father
of Christopher. He was adjudged liable for child support
arrearages of $94,578, including prejudgment interest, and
attorney's fees of $11,578.80. Stephen was ordered to pay future
child support of $658.18 per month.
II. FACTS AND PROCEEDINGS
Christopher was born in 1987. At that time Adeline was
married to Thomas Arnold and listed him as Christopher's father on
the birth certificate. Adeline and Thomas are the parents of two
older children. A fourth child was born to Adeline in 1990.
Thomas and Adeline dispute the parentage of this child, but their
dispute is not an issue in this case. Thomas and Adeline separated
in 1989. They had not divorced as of the date the final judgment
was entered in this case.
In 1991 Adeline's attorney contacted Stephen and communi-
cated her claim that he is Christopher's biological father. In
November 1991 Stephen paid Adeline $500 for child support. On
September 3, 1992, Stephen signed an affidavit of paternity,
certifying that he is the natural father of Christopher.
Adeline filed the complaint in this action on October 6,
1992. Stephen denied paternity and moved to dismiss the complaint,
arguing that relief could not be granted without Thomas and
Christopher both being made parties to the action. In response,
the superior court ordered that the case would be dismissed unless
Thomas was made a party. Adeline amended her complaint, adding a
claim against Thomas for divorce, custody of the other three
children, and child support.
On July 16, 1993, the trial court ordered Stephen to
undergo blood testing to determine the paternity of Christopher.
When Stephen did not comply, Adeline moved for an order to show
cause why he should not be held in contempt. The court granted
this motion on September 9, permitting Stephen to purge his
contempt by submitting proof of blood testing within an additional
Thomas prepared a pro per answer. Adeline's counsel
received this on October 8. When it became apparent that it had
not been filed in court, Adeline's counsel filed it on November 3.
Thomas's answer did not respond to Adeline's allegation that
Stephen is Christopher's father.
On October 13 Stephen, who had not obeyed the trial
court's order requiring blood testing, moved for a stay of
proceedings until "a final decision has been made regarding
Christopher Arnold's legitimacy." Adeline opposed, arguing that a
stay was inappropriate since the objective of the blood testing was
to determine Christopher's paternity. In response, Stephen argued
that it was essential that the court appoint a guardian ad litem to
represent Christopher's best interests. The trial court denied
Stephen's motion for a stay and ordered the parties to appear at a
hearing before a master to determine issues relating to whether
Thomas should be estopped from denying paternity.
The master's hearing was held on January 5, 1994.
Adeline appeared, and Stephen appeared through counsel and was
available for testimony telephonically. Thomas did not appear.
The master reported that Adeline
admitted that she falsely identified Thomas
Arnold as Christopher's father at birth and
put Mr. Arnold's name on the child's birth
certificate. She added that she did not tell
Mr. Arnold about her extramarital relationship
with Stephen Rubright and did not tell Mr.
Arnold until a year after Christopher's birth
that he was not the father of that child. She
said that after so informing Mr. Arnold he
"backed away"from a relationship with
Christopher and has twice visited two of the
other Arnold children but not Christopher
since the parties' separation in 1989. She
also believes that Mr. Arnold had a paternity
blood test performed in Seward, Alaska in
approximately September of 1990, and that she
understood the test result indicated that Mr.
Arnold is not Christopher's father.
Adeline again moved for an order to show cause,
requesting sanctions for Stephen's failure to take a blood test.
On June 10, 1994, the superior court granted the motion and
ordered that Stephen would be adjudicated Christopher's biological
father unless he submitted to paternity tests within thirty days.
Stephen sought reconsideration of this order, indicating that he
would decline to take the blood test on advice of counsel since the
child was not illegitimate, and again requesting a guardian ad
litem to represent Christopher. The motion for reconsideration was
denied. Stephen then petitioned this court for review. His
petition was denied.
On November 18 Adeline moved for a declaration that
Stephen is the legal father of Christopher. Stephen still had not
taken a blood test. Adeline submitted blood-test results with her
motion, which showed that Thomas is not Christopher's father.
Stephen opposed the motion, again on the ground that Thomas is
Christopher's presumed father. Again, Stephen asked that the court
appoint a guardian ad litem for Christopher. On December 9, 1994,
the court granted Adeline's motion for a declaration that Stephen
is Christopher's legal father.
The court then sua sponte dismissed Thomas as a party to
the action. Stephen moved for reconsideration of the paternity
order on the grounds that the blood test concerning Thomas was not
authenticated as required in Mattox v. State, CSED, 875 P.2d 763
(Alaska 1994). This motion was denied. The court indicated that
the order establishing Stephen's paternity was both a sanction for
Stephen's willful failure to submit to blood testing and a
determination on the merits based primarily on Stephen's signed and
notarized acknowledgment of paternity. The court also stated that
Thomas's blood testing was not a basis for the court's order.
Stephen sought to appeal the paternity order, and
requested a certification of finality pursuant to Civil Rule 54(b).
The court denied a Rule 54(b) certificate, finding that there was
no reason to sever the issue of paternity from that of support, and
noting that Stephen "can still submit to [blood] testing and
challenge the court's finding [of paternity]." Subsequently, the
amount of support Stephen owed was determined by motion practice,
and arrearages were calculated from Christopher's date of birth.
Finally, the court awarded attorney's fees to Adeline under Civil
A. Did the Court Err in Determining that Stephen Is the
Father of the Child?
Stephen's arguments on this point are that (1) it was
inappropriate to sanction Stephen with an order declaring him to be
Christopher's father because Thomas's paternity was never
disestablished and this case is distinguishable from the case on
which the superior court relied, Dade v. State, CSED, 725 P.2d 706
(Alaska 1986); (2) Adeline was estopped to deny paternity because
she placed Thomas's name on the birth certificate and represented
"for several years thereafter that Thomas Arnold was Christopher's
father"; (3) Thomas should be estopped from denying paternity
because he was not properly made a party, and has never denied
paternity or given sufficient evidence that he is not the father;
and (4) Stephen's signing of the affidavit of paternity was without
legal effect as a legitimating act under AS 25.20.050(a). We
discuss each argument in turn.
It is our view that the order establishing paternity was
correct, both as a sanction and on the merits.
As a sanction, the order was correct because Stephen
willfully refused to take a blood test. He was first ordered to do
so on July 16, 1993, the order was later twice repeated, and
Stephen was given explicit notice in the order of June 10, 1994,
that he would be adjudicated to be the biological father of
Christopher if he did not schedule and submit to paternity testing
within thirty days. Nonetheless, he at all times refused testing.
In Dade, we upheld a sanction entered as an order
establishing paternity where the putative father had arranged for
a friend to submit blood for testing in response to a discovery
order. 725 P.2d at 708. We noted that establishment orders are
justified where the failure to comply with a discovery order is
willful, in the sense of "a conscious intent to impede discovery."
Id. (citing Hawes Firearms Co. v. Edwards, 634 P.2d 377, 378-79
(Alaska 1981)). We found the putative father's conduct in that
case to be egregious since he attempted to provide false evidence
to the court. Id. In the present case, the element of false
evidence is missing. Stephen seeks to distinguish the instant case
from Dade on this basis.
While Dade is factually distinguishable, this case also
presents a refusal to submit to blood testing which is willful, and
in which the failure to submit can fairly be described as egregious
in light of the several iterations of the court's order and the
considered nature of Stephen's refusal.
Stephen also argues that the sanctions were inappropriate
because Christopher was born to Adeline while she was married to
Thomas. Although Stephen does not develop this argument, he evi-
dently means that in paternity suits with a presumptive father, the
presumption must first be rebutted before discovery can take place
requiring a blood test from the putative father. Stephen cites no
precedent suggesting such mandatory bifurcation, and we see no
reason for such a rule.1 The putative father's blood test may be
relevant not only to establishing the paternity of the putative
father, but also to rebutting the presumption of paternity in the
We thus reject both of Stephen's arguments concerning the
establishment order as a sanction.
Turning to the establishment order on the merits and
treating it as the product of motion practice equivalent to a
motion for summary judgment, the order must also be affirmed.
To obtain summary judgment, the moving party must
demonstrate the absence of genuine issues of material fact and that
the moving party is entitled to judgment as a matter of law. See
Alaska Travel Specialists, Inc. v. First Nat'l Bank of Anchorage,
919 P.2d 759, 762 (Alaska 1996). The opponent to the motion need
not demonstrate the existence of a genuine issue until the moving
party makes a prima facie showing of its entitlement to judgment on
the established facts. See id.
Adeline made a prima facie showing that Stephen is the
father of Christopher. She relied on the evidence which had
already been submitted, including her sworn testimony before the
master that Stephen is the father and the sworn acknowledgment of
paternity which Stephen had signed. In response, Stephen filed no
affidavits and no statement of genuine issues. His defense was
legal rather than factual in nature. He stated: "[Stephen] does
not know whether he is the biological father of Christopher Arnold,
and at this point he is not interested in knowing. Christopher has
a legal father and has had a legal father since he was born."
There were, then, no genuine factual issues which would serve to
prevent summary judgment.2
Turning to Stephen's legal arguments concerning the
merits of the summary judgment adjudication, he first argues that
Adeline was estopped to deny paternity because she named Thomas as
the father when Christopher was born and represented for "several
years"thereafter that Thomas was the child's father.
The elements of equitable estoppel are (1) representation
of a position by word or deed, (2) reasonable reliance thereon by
another party, and (3) detriment or prejudice to that party. See
K.E. v. J.W., 899 P.2d 133, 134 (Alaska 1995). Assuming, without
deciding, that estoppel of the mother might under some circum-
stances be appropriate in a paternity case, this defense is legally
insufficient under the circumstances of this case, for there is no
claim that Adeline made a representation to Stephen, and similarly,
no claim of detrimental reliance on the part of Stephen.
Stephen's second argument is that Thomas should be
estopped from denying paternity because he was not properly made a
party, and has not denied paternity or given sufficient evidence
that he is not the father. This defense also is insufficient.
Thomas was named as a party in this case. He was served, and wrote
an answer which did not respond to the allegation that he is not
the child's father. Under Civil Rule 8(d), the allegation was
therefore admitted. Stephen states that this answer "could easily
be a complete fabrication by Adeline Arnold." However, this is
merely counsel's argument. No effort was made to pursue this
possibility through discovery or otherwise in the proceedings
below. Further, even if Thomas had not been made a party, Stephen
could still be liable. Thomas was not necessarily an indispensable
party under Civil Rule 19(a), as it is difficult to see why his
absence would prejudice Stephen.
Stephen's third point is that the affidavit of paternity
was without legal effect. Under AS 25.20.050(a), a child born out
of wedlock may be legitimated by a putative father who acknowledges
paternity in writing. Stephen's affidavit was signed on a form
designed to accomplish legitimation under this section. Stephen
argues that since Christopher was born to a married woman, he was
not born "out of wedlock,"and therefore could not be legitimated
under AS 25.20.050(a). This point may or may not be correct
depending on the meaning of the term "out of wedlock"as it is used
in the statute. If any child born to a married woman is not born
"out of wedlock"regardless of the biological father, then Stephen
is correct. If, on the other hand, a child whose mother is married
to someone other than the biological father is born "out of
wedlock,"Stephen may be incorrect.3 However, it is not necessary
to resolve this question because Adeline did not seek to use the
affidavit of paternity to establish Christopher's legitimacy under
AS 25.20.050(a). Instead, the affidavit was simply used as an
evidentiary admission. As such, its use was proper. See Alaska R.
B. Did the Court Err in Refusing to Appoint a Guardian ad
Litem for the Child?
The superior court has broad discretion in deciding
whether to appoint guardians ad litem. See Veazey v. Veazey, 560
P.2d 382, 385 (Alaska 1977). The court's decision appointing or
declining to appoint a guardian ad litem will not be overturned
absent an abuse of discretion. See W.E.W. v. D.A.M., 619 P.2d
1023, 1025 (Alaska 1980).
Stephen argues that a guardian ad litem for the child
should always be appointed in paternity actions involving a claim
that the presumed father is not the biological father. He points
to many jurisdictions which follow this rule. See Unif. Parentage
Act § 9, 9B U.L.A. 312 (1987) ("The child shall be made a party to
the action. If he is a minor he shall be represented by . . . a
guardian ad litem . . . ."); see also Danny R. Veilleux,
Annotation, Necessity or Propriety of Appointment of Independent
Guardian of Child Who is Subject of Paternity Proceedings, 70
A.L.R. 4th 1033 (1989).
In W.E.W., a paternity action involving an unmarried
mother, we held that the trial court did not err in refusing to
appoint a guardian ad litem for the infant child. 619 P.2d at
1025. We concluded that the child's rights were adequately pro-
tected by the mother, who was suing the putative father for
We decline to adopt a per se rule which holds that a
guardian ad litem must always be appointed in a paternity action
involving a mother who was married at the time of the child's
birth. Often, a guardian ad litem should be appointed, especially
where there are issues such as custody, visitation, or inheritance
rights on which the child's and the mother's interests may not
coincide. See Howlett v. Howlett, 890 P.2d 1125, 1127-28 (Alaska
1995). Here, however, no specific reason for appointment of a
guardian ad litem is alleged. The 1994 master's hearing explored
the question of the emotional attachment between Christopher and
Thomas, and the only evidence that was presented was that Thomas
had not visited Christopher -- who was then six years old -- for
more than four years. Stephen does not seek visitation rights.
Further, there is no suggestion that Christopher is losing valuable
inheritance rights as a result of the judgment.4
Finally, even if we were to conclude that a guardian ad
litem should have been appointed in this proceeding, we would not
reverse this case absent a showing by Stephen that the court's
refusal to appoint a guardian ad litem affected Stephen's
substantial rights.5 No such showing has been made.
C. Did the Court Err by Awarding Adeline Child Support from
the Date of Christopher's Birth?
Stephen argues that his child support obligation could
only begin on December 10, 1994, when the trial court found him to
be Christopher's father, because Thomas was Christopher's legal
father before that time. We reject this argument.
In State, CSED v. Rios, 938 P.2d 1013, 1015 (Alaska
1997), it was argued that a biological parent's duty of support for
a child born out of wedlock does not begin until a court has
adjudicated paternity. We rejected this argument, holding instead
that a parent's duty of support "commences at the date of the birth
of the child." Id. Likewise, in Flanigin v. State, CSED, 946 P.2d
446, 450 (Alaska 1997), we recognized the rule that "child support
arrearages are imposable by law from the date of a child's birth
. . . ." These cases control the present case.
We also acknowledge that this ruling has a potential for
unfairness in particular cases. If a biological father has no
notice of his paternity until many years after the birth of a
child, child support arrearages may be economically crushing. The
father may have no means, except avoiding conception, of protecting
himself. Large and unexpected liabilities can be the logical
consequence of the rule that a biological father is liable for the
support of a child from birth, especially when past arrearages are
based on the child support guidelines set out in Civil Rule 90.3,
rather than on reimbursement of past expenses. See Vachon v.
Pugliese, 931 P.2d 371, 381-82 (Alaska 1996). However, these
principles are well established in our case law. Further, many
other jurisdictions hold that a father's liability for support
extends from the birth of the child. See, e.g., W.M. v. D.S.C.,
591 A.2d 837, 843 (D.C. 1991); Department of Revenue v. Roe, 560
N.E.2d 1288, 1289 (Mass. App. 1990); Wingate v. Estate of Ryan, 693
A.2d 457, 463 (N.J. 1997); Kathy L.B. v. Patrick J.B., 371 S.E.2d
583, 589 (W. Va. 1988). If relief from the potentially harsh
consequences which we have noted herein is to be afforded, it must
come from the legislative rather than the judicial forum.
D. Did the Court Err in Awarding Attorney's Fees Pursuant to
Civil Rule 82?
With respect to this point, Stephen argues that the
divorce exception to Civil Rule 82 should apply. He cites
Bergstrom v. Lindback, 779 P.2d 1235, 1238 (Alaska 1989), in which
we held that the divorce exception, instead of Rule 82, applies to
proceedings involving child custody and support between unmarried
persons. Bergstrom was similar to a divorce case because the
parties had lived together as husband and wife for many years and
had two children. Id. at 1236. When they decided to separate,
questions of custody and support arose just as they would have
between married parties. It was therefore logical to apply the
same rule concerning attorney's fees to Bergstrom as is applied to
divorce cases. This case, however, does not resemble a divorce
action. There exists here no reason to apply the divorce exception
even as extended by Bergstrom. See B.J. v. J.D., 950 P.2d 113,
118-19 (Alaska 1997) (refusing to apply the Bergstrom divorce
exception to a custody proceeding filed three years after the
parties ended their relationship because it "does not bear the same
close resemblance to an initial custody proceeding in a divorce
action as did Bergstrom").
For the above reasons the judgment is AFFIRMED.
1 We note, however, that under the Uniform Parentage Act
the presumption of paternity must first be rebutted before
paternity by another man may be determined in the same action.
Unif. Parentage Act § 6(a)(2), 9B U.L.A. 302 (1987). The uniform
act has not been adopted in Alaska, and the bifurcation it mandates
does not require that discovery be bifurcated.
2 The fact that Thomas is the presumed father of
Christopher does not necessarily prevent summary judgment,
adjudicating Stephen to be the father. We discussed the
relationship between the presumption and summary judgment in In re
J.B., 922 P.2d 878, 881 n.4 (Alaska 1996):
There is a presumption, rebuttable by
clear and convincing evidence, that [the
husband] is [the child's] father. The effect
of this presumption was to shift to the State
the burden of going forward with the presenta-
tion of evidence. This duplicates the burden
that was already imposed on the State as the
party moving for relief in the nature of
summary judgment. As such, the presumption
does not prevent such relief from being
entered if, in consideration of all the
evidence including the basic fact giving rise
to the presumption -- [the husband's] marriage
to [the mother] at the time of [the child's]
birth -- it could not be reasonably concluded
that [the husband] was [the child's] father.
On this record a conclusion that [the
husband] was [the child's] father would be
unreasonable. The fact that the presumption
is rebuttable only by clear and convincing
evidence does not change this conclusion. If
there were any evidence sufficient to raise a
genuine issue of material fact on the question
whether [the husband] was [the child's]
father, such evidence would suffice to prevent
relief in the nature of summary judgment
regardless of the standard of proof to be used
3 This is the sense in which we seem to have construed the
term "out of wedlock"in State, CSED v. A.H., 880 P.2d 1048, 1050
(Alaska 1994). The Uniform Act on Paternity is in agreement: "A
child born out of wedlock includes a child born to a married woman
by a man other than her husband." Unif. Act on Paternity § 1, 9B
U.L.A. 350 (1987).
4 Since Christopher was not a party, an adjudication having
the effect of disinheriting him would not necessarily be binding on
him in any event. See, e.g., Ex parte Martin By and Through
Sarris, 565 So. 2d 1, 3 (Ala. 1989).
5 Civil Rule 61 provides that any error or defect in a
proceeding "which does not affect the substantial rights of the
parties"is harmless error and is not a ground for vacating a
judgment. While Stephen has argued that a guardian ad litem was
necessary to protect the child's best interests, he has made no
argument suggesting how his substantial interests might have been
affected by the court's failure to appoint a guardian ad litem.
BRYNER, Justice, with whom COMPTON, Justice, joins, concurring.
I concur in affirming the disputed paternity judgment,
but only on the ground that it was an appropriate sanction for
Rubright's refusal to take a blood test. In my view, it is both
unnecessary and unwise to reach beyond the issue of sanctions by
upholding the paternity order on its merits.
When it imposed the disputed judgment, the trial court
expressly stated that Rubright could "still submit to [blood]
testing and challenge the court's finding [of paternity]." Thus,
the trial court did not mean the judgment to be a true litigation-
ending sanction; rather, the court meant to leave Rubright the keys
to reopen his case. In my view, the judgment is defensible only if
it is interpreted as it was intended to be -- as a non-terminal
sanction.1 Construing the judgment to be a non-terminal sanction
also renders defensible the court's decision not to appoint a
guardian ad litem. As a reversible measure aimed chiefly at
encouraging compliance, the paternity judgment simply defers the
guardian ad litem issue until Rubright complies with the court's
directives, preserving the status quo in the interim.
By contrast, if the disputed judgment were construed as
a conclusive resolution of the case on its merits, its validity
would seem highly questionable. I will concede for argument's sake
the doubtful proposition that Rubright's promise to pay Adeline
support and his subsequent affidavit of paternity are, standing
alone, clear and convincing evidence that he is actually
Christopher's biological father. Even so, several other factors
weigh strongly against upholding the trial court's decision on its
merits rather than as a sanction. First, the disputed judgment
purports to establish the paternity of a previously unrecognized
father without first disestablishing paternity of the present,
legally presumed father.2 Second, the court entered this order
without the presumed father's participation and without an
evidentiary hearing. Finally, despite a decidedly unusual set of
relational dynamics,3 the court acted without expressly considering
Christopher's best interests or requiring his interests to be
represented independently from his mother's.4
These considerations counsel me to refrain from affirming
the paternity judgment as anything other than a non-terminal
sanctions order. Affirming the judgment on this narrow ground is
fully sufficient to resolve this appeal and gives the judgment the
limited effect that the superior court intended it to have; at the
same time, affirming on this narrow ground avoids an unnecessary
venture onto shaky legal terrain.
I thus concur with the court's decision but decline to
join in the portion of its opinion affirming the judgment on its
1 Although Rubright's wilful and obstinate disobedience
certainly deserved strong sanctions, I am convinced that imposing
a true litigation-ending sanction against him would have been
improper, since other less drastic sanctions, such as civil
contempt, were readily available. See, e.g., Sykes v. Melba Creek
Mining, Inc., 952 P.2d 1164, 1169-70 (Alaska 1998).
2 Although Rubright does not brief the issue, I find it
hard to think of any reason to reject the Uniform Parentage Act's
rule requiring a presumed parent's paternity to be disestablished
before a new parent's paternity can be established. See Unif.
Parentage Act § 6(a)(2), 9B U.L.A. 302 (1987). The court's opinion
correctly notes that adopting the UPA's approach would have
permitted discovery to proceed in the paternity action against
Rubright. See Slip. Op. at 7-8. The UPA's approach would thus be
compatible with upholding the trial court's order as a sanction.
But it could not justify entering a final order establishing his
paternity without a prior ruling disestablishing existing
3 Adeline's mention of Thomas's "backing away"from a
relationship with Christopher is nebulous at best, but it does
imply that at least some relationship existed between Thomas and
Christopher. By contrast, it seems clear that no relationship at
all existed between Christopher and Rubright. No other meaningful
evidence concerning Christopher's relationships or best interests
4 Adeline's somewhat abrupt determination to sever all ties
to Thomas and demand support from Rubright suggest action motivated
by her own economic and emotional interests; the record provides
little assurance that she was acting in Christopher's best