Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Estate of Seward (7/20/2018) sp-7260

Estate of Seward (7/20/2018) sp-7260

          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, email  

           corrections@akcourts.us.  



                      THE SUPREME COURT OF THE STATE OF ALASKA                                      



In  the  Matter  of  the  Estate  of                            )  

                                                                                                      

                                                                )    Supreme Court No. S-15561  

                   

JAMES V. SEWARD.                                                )  

                                                                                                                               

                                                                )    Superior Court No. 3AN-13-02105 PR  

                                                                )  

                                                                                         

                                                                )    O P I N I O N  

                                                                )  

                                                                                                      

                                                                )    No. 7260 - July 20, 2018  



                                                                                                            

                     Appeal from the Superior Court of the State of Alaska, Third  

                                                                                                

                     Judicial District, Anchorage, Erin B. Marston, Judge.  



                                                                                                               

                     Appearances:  Vincent E. Mock and Gaylene L. Mock, pro  

                                                                                                       

                     se,  Lexington,  Kentucky,  Appellants.                         Donna  C.  Willard,  

                                                                                                                  

                     Law Offices of Donna C. Willard, Personal Representative of  

                                                                                                            

                     the Estate of James V. Seward, Anchorage, Appellee.  Dario  

                                                                                                              

                     Borghesan,  Assistant  Attorney  General,  Anchorage,  and  

                                                                                                 

                     Jahna  Lindemuth,  Attorney  General,  Juneau,  for  Amicus  

                                               

                     Curiae State of Alaska.  



                                                                                                         

                     Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                          

                     and Carney, Justices.  



                                          

                     WINFREE, Justice.  



I.         INTRODUCTION  



                                                                                                                                    

                          

                     A man asserted in a probate proceeding that he was the decedent's son and  



                                                                                                         

requested a paternity determination.  The personal representative opposed the request,  



                                                                                                                                    

arguing that a paternity determination could not be made in a probate proceeding and that  



                                                                                                                                   

this  particular  paternity  determination  was  barred  by  a  statute  of  limitations.                                          The  


----------------------- Page 2-----------------------

superior   court   agreed   that   probate   proceedings   were   not   appropriate   for   paternity  



determinations and rejected the man's request, but it did not rule on the statute of                                                                                                                                                                  



limitations issue.                                  The court later determined that the man was not an interested person                                                                                                                  



to the probate proceeding and barred him from further participation.                                                                                                                                      



                                       On appeal, we held that paternity determinations can be made in probate                                                                                                                         



proceedings; we then requested supplemental briefing on the statute of limitations issue.                                                                                                                                                                      



We now hold that a paternity determination request during a probate proceeding is not                                                                                                                                                               



barred by any statute of limitations, and we remand for further proceedings consistent                                                                                                    



with this and our earlier decision.                                     

II.                 FACTS AND PROCEEDINGS                                                                             1  



                                                                                                                                                                                                                                   2  

                                                                                                                                                                                                                                       Seward  

                                       James V. Seward died in Anchorage in May 2013 at the age of 90. 



                                                                                                                                                                                                                                                 

had  executed  a  September  11,  2008  will  appointing  a  personal  representative  and  



                                                                                                                                 3 

                                                                                                                                                                                                                                    

declaring that he had no spouse or children.   Seward's will was admitted for informal  



                                                                                 4  

                                                                 

probate in September 2013. 



                                                                                                                                                                                                                                           

                                       In October 2013 Vincent Mock and his mother, Gaylene Mock, began  

                                                                                                                                                                                                                                 5  Gaylene  

                                                                                                                                                                                                                                      

efforts in the probate proceeding to establish that Seward was Vincent's father. 



argued that she was a creditor of the estate,  seeking back child support for raising  

                                                                                                                                                                                                                                        



                    1                  We set forth the full facts of this case in                                                                            Estate of Seward, 401 P.3d 976,   



979-82 (Alaska 2017).                           



                    2                  Id.  at  979.  



                    3                  Id.  



                    4                  Id.  



                    5                  Id.  



                                                                                                                           -2-                                                                                                                 7260
  


----------------------- Page 3-----------------------

                6  

Vincent.    Vincent argued that the will was invalid and he was entitled by intestate                                                         



succession to the entire estate, or, alternatively, that he was a pretermitted heir and                                                                

                                                          7   The superior court ruled that paternity determinations  

entitled to a portion of the estate.                                                                                               

                                                                                                                                    8  The superior  

could not be made in probate proceedings and rejected Vincent's requests.                                                                      

                                                                                                                     



court eventually ruled that Gaylene and Vincent were not interested persons to the  

                                                                                                                                                        

probate proceeding and precluded them from making any further filings.9  

                                                                                                                        



                        Gaylene and Vincent appealed.  We affirmed in part in Estate of Seward,  

                                                                                                                                               



holding that Gaylene's creditor claim was barred by the statute of limitations and that  

                                                                                                                                                       

Vincent was not entitled to intestate succession or relief as a pretermitted heir.10   But we  

                                                                                                                                                         



also held that paternity determinations can be made in probate proceedings and that, as  

                                                                                                                                                          



Vincent  also  had  suggested,  he  might  be  entitled  to  a  statutory  exempt  property  

                                                                                                                                              

                                                                11   We ended our decision by noting we would order  

allowance if he were Seward's son.                                                                                                                   

                                                         



supplemental  briefing  on  whether  Vincent's  paternity  determination  for  a  statutory  

                                                                                                                                             



allowance might be barred by a statute of limitations, because the personal representative  

                                                                                                                                     

had argued in the superior court that all of Vincent's claims were so barred.12  We did  

                                  



            6           Id.  at 980.   



            7  

                                    

                        Id. at 979.  



            8  

                                    

                        Id. at 980-82.  



            9           Id.  at 982.   



            10  

                                    

                        Id. at 984-87.  



            11  

                                             

                        Id. at 983, 988.  



            12  

                                    

                        Id. at 989-90.  



                                                                            -3-                                                                     7260
  


----------------------- Page 4-----------------------

     13  

so,      and also asked the State of Alaska to file an amicus curiae brief. We thank the State                                                    



for its participation in this appeal.           



III.	       STANDARDS OF REVIEW                 



                                                                                                             14  

                                                                                                                                                      

                        How   to   interpret   a   statute   is   a   legal   question.                            Whether  a  statute  of  



                                                                                                                                15  

                                                                                                                                             

limitations applies to a paternity determination is also a legal question.                                                           We answer  



                                                                                                                                                 

legal  questions  using  our  independent  judgment,  "adopting  the  rule  of  law  most  



                                                                                              16  

                                                                                

persuasive in light of precedent, reason, and policy." 



IV.	        DISCUSSION  



                                                                                                                                          

            A.	         A Paternity Determination In A Probate Proceeding Is Not A Separate  

                                                                                                        

                        Cause Of Action Subject To A Statute Of Limitations.  



                                                                                                                                                     

                        The first step in evaluating a statute of limitations defense is to examine the  



                                                                                                                                             

claim sought to be barred.  We therefore begin our analysis by examining the exempt  



                                                         

property allowance statute, AS 13.12.403.  



                                                                                                                                                   

                        This statute provides that when the decedent has no surviving spouse, "the  



                                                                                              

decedent's children" are "entitled from the estate to a value, not exceeding $10,000 in  



            13           Estate   of   Seward,  No.   S-15561   (Alaska   Supreme   Court   Order,   July   7,  



2017).  



            14          State,   Office   of  Pub.  Advocacy   v.  Estate   of  Jean  R., 371   P.3d   614,   618  



(Alaska  2016).  



            15          See  Moffit  v.  Moffitt,  341  P.3d  1102,  1104  (Alaska  2014)  ("[W]e  review  de  



novo  questions  regarding  the  applicable  statute  of  limitations,  the  interpretation  of  that  

statute,  and  whether  that  statute  bars  a  claim."  (alteration  in  original)  (quoting  Gefre  v.  

Davis  Wright  Tremaine,  LLP,  306  P.3d  1264,  1271  (Alaska  2013)));  see  also  Grober  v.  

State, Dep't of Revenue, Child Support Enf't Div.  ex rel.  C.J.W., 956 P.2d 1230, 1232  

(Alaska  1998)  (reviewing  de  novo  whether  statute of  limitations  barred  paternity  action).  



            16          GEICO  v.  Gonzalez,  403  P.3d  1153,  1160  (Alaska  2017)  (quoting  

                                                                                                                                          

ConocoPhillips Alaska,  Inc.  v.  Williams Alaska  Petroleum,  Inc., 322 P.3d  114,  122  

                                                                                                                                                   

(Alaska 2014)).  

                



                                                                          -4-	                                                                   7260
  


----------------------- Page 5-----------------------

excessof security interests in the                              items, in household                    furniture, automobiles, furnishings,  



                                                                     17  

appliances, and personal effects."                                                                                                                          

                                                                            Seward was not survived by a spouse; Vincent  



                                                                                                                                                       

therefore is entitled to the allowance if he can show that he is one of "the decedent's  



                                                                                                                                                                      

children."  The exempt property allowance statute does not define "children," but the  



                                                                                                                                                                  

probate code generally defines "child" to include "an individual entitled to take as a child  

                                                                                                                                                              18     We  

                                                                                                                                                                    

. . . by intestate succession from the parent whose relationship is involved." 



therefore  look  to  the  probate  code  mechanism  for  establishing  the  parent-child  

                                                                                                                                                   



relationship for purposes of intestate succession, AS 13.12.114, to determine whether  

                                                                                                                                                            

Vincent could be a child under that provision.19  

                                                                        



                           Alaska  Statute  13.12.114(a)  provides:                                              "[F]or  purposes  of  intestate  

                                                                                                                                                           



succession by, through, or from a person, an individual is the child of the individual's  

                                                                                                                                                     



natural parents, regardless of their marital status, and the parent and child relationship  

                                                                                                                                 



may be established as indicated under AS 25.20.050."  Alaska Statute 25.20.050 in turn  

                                                                                                                                                                     



provides:  "A child born out of wedlock is legitimated and considered the heir of the  

                                                                                                                                                                      



putative parent when . . . the putative parent is determined by a superior court without  

                                                 



             17            AS   13.12.403.  



             18            AS   13.06.050(5).  



             19            The  personal  representative  argues  that  we  should  not  apply  AS  13.12.114  



here   because   its   "for   purposes  of   intestate   succession"   language   can   apply   only   to  

decedents  without valid  wills,   and   Seward  had   a   valid  will.    It   is  true  that   "intestate  

succession"  is  usually  understood  as  the  statutory  process  for  distributing  an  estate  when  

a  decedent  left  no  will.   But,  as  already  discussed,  the  probate  code  includes  individuals  

who   may   take   by   intestate   succession  in  its   class   of   exempt   property   allowance  

beneficiaries, so we must decide whether Vincent is such an individual by applying                                                                         

                                   

AS 13.12.114.                  We decline to adopt the personal representative's suggestion that the                                                                  

legislature provided a path for some, but not all, children born out of wedlock to prove                                                                         

their parentage, dependent only on whether a parent executed a valid will.                                                                 



                                                                                   -5-                                                                            7260
  


----------------------- Page 6-----------------------

jury or by another tribunal, upon sufficient evidence, to be a parent of the child."                                                                20  



                                                                                                                                           

Finally, AS 13.12.114(d) qualifies: "To the extent there is a conflict between this section  



                                                                                                                    

 and either AS 25.20.050 or AS 25.23.130, this section controls."  



                                                                                                                                                    

                        Examining these various statutes together, Vincent's assertion of a right to  



                                                                                                                                         

the exempt property allowance turns on whether Seward is one of Vincent's "natural  



                                                                                                                                                   

parents" under  AS 13.12.114.                             We must therefore  decide whether  the language of  



                                                                                                                                               

AS 13.12.114 creates its own cause of action distinct from Vincent's assertion of right  



                                                                                                                   

to  the  exempt  property  allowance.                                If  it  does,  we  will  treat  Vincent's  paternity  



                                                                                                                                   

determination request as stating a separate cause of action and apply the appropriate  



                                                  

 statute of limitations to that action.  



                                                                                                                                                   

                        The plain language of AS 13.12.114 is best read as creating a procedure for  



                                                                                                                                                  

 establishing paternity, not as a separate cause of action.  The statute begins with the  



                                                                                                                                                    

phrase "for purposes of intestate succession."   These words show that the statute is  



                                                                                                                                               

concerned with paternity to determine inheritance, not paternity for its own sake.  Then  



                                                                                                                                  

the words "may be established as indicated under" provide a procedure for determining  



                                                                                                                                           

paternity - the procedure in AS 25.20.050.  That statute is also procedural in nature,  



                                                                                                                                      

 allowing a superior  court to  legitimate a child  "without jury" and  "upon  sufficient  

                   21   Alaska Statute 25.20.050 contemplates specific fact-finding rather than a  

 evidence."                                                                                                 



general cause of action: subsection (e) refers to genetic testing "in proceedings in which  

                                                                                                                                             



paternity is contested"; subsection (g) refers to "an action where paternity is contested";  

                                                                                                                                    



 and  subsection (a) refers simply to a "determin[ation] by a superior court without jury  

                                                                                                                                                



or by another tribunal." Thus, both the plain language of AS 13.12.114 and the language  

                                                                                                                                        



of AS 25.20.050, incorporated by reference, are best read as defining the process a court  

                                                                                                                                              



            20          AS 25.20.050(a)(4).   



            21         See id.  

                                     



                                                                         -6-                                                                       7260  


----------------------- Page 7-----------------------

must follow to determine heirs to whom an estate devolves, not as providing a cause of                                                                                                                                                         



action.  



                                      The personal representative urges us to decide differently, arguing that                                                                                                                            



because Vincent must show that he is Seward's child, Vincent must necessarily prove                                                                                                                                                 



his paternity in a separate action.  We disagree with this analysis.  Though outside the                                                                                                                                                    

                                                                                                                                                                                                                                     22 and  

probate context we have referred to paternity determinations as paternity "actions,"                                                                                                                                                       

though there is a slim textual basis for such a conclusion,23  a distinct "paternity action"  

                                                                                                                                                                                                                                 



usually refers to a child support proceeding and not a paternity determination in and of  

                                                                                                                                                                                                                                               

itself.24   In that sense the paternity determination is only one element of the child support  

                                                                                                                                                                                                                                



claim, and a statute of limitations is relevant only because the child support claim itself  

                                                                                                                                                                                                                                       

is  subject  to  a  statute  of  limitations.25                                                                                  We  never  have  described  a  paternity  

                                                                                                                                                                                                                         



determination, standing apart froma child support action, as a separate paternity "action"  

                                                                                                                                                                                                                              



                   22                 See Grober v. State, Dep't of Revenue, Child Support Enf't Div., ex rel.                                                                                                                             



 C.J.W., 956 P.2d 1230, 1232 (Alaska 1998) ("[The child] was under the age of majority                                                                                                                                       

when the                   cause of action arose                                         ." (emphasis added)).                



                   23                 See AS25.20.050(h) ("Thetribunal in a paternityaction shallgivefull faith  

                                                                                                                                                                                                                                         

and credit to a determination of a paternity made by another state." (emphasis added)).  

                                                                                                                                                                                                                                                        



                   24                 See Paternity Action, BLACK 'S LAW  DICTIONARY   (10th ed. 2014) ("                                                                                                                                  See  

                                                                                                     

Paternity Suit.                          ");  Paternity Suit                              , B     LACK 'S  LAW  DICTIONARY  (10th ed. 2014) ("A court                                                                                 

proceeding to determine whether a person is the father of a child (esp. one born out of   

wedlock),  usu. initiated by the mother in an effort to obtain child support." (emphasis  

added)).  



                   25                 See Heustess v. Kelley-Heustess, 259 P.3d 462, 468-69 (Alaska 2011)  

                                                                                                                                                                                                                                   

("[Alaska Statute 09.10.100] applies to [this] claim for child support . . . .").  

                                                                                                                                                                                                          



                                                                                                                       -7-                                                                                                             7260
  


----------------------- Page 8-----------------------

subject to a statute of limitations, and we will not do so now to interpret AS 13.12.114                                                                                    

as creating its own cause of action.                                           26  



                              Vincent was not required to bring a separate paternity cause of action to  

                                                                                                                                                                                               



assert his right to the exempt property allowance.  

                                                                                       



               B.	            Vincent  Asserted  His  Right  To  The  Exempt  Property  Allowance  

                                                                                                                                                                         

                              Within The Probate Code's Time Limits.  

                                                                                                                



                              Having decided that Vincent did not need to bring a separate paternity suit,  

                                                                                                                                                                                          



the  only  remaining  question  is  whether  he  timely  asserted  his  right  to  the  exempt  

                                                                                                                                                                                  



property allowance.  We conclude that he did.  

                                                                                                



                              There are two relevant time bars in the probate code.  First, the non-claim  

                                                                                                                                                                            



statute provides that any "claim[] against a decedent's estate that arise[s] at or after the  

                                                                                                                                                                                            

death of the decedent" is barred "within four months after it arises."27  

                                                                                                                                                                                     

                                                                                                                                                         Second, the estate- 



                                                                                                                                                                   

closing statutes limit the liability of the estate, distributees, and personal representative  



                                                           28  

                                                                                                                               

after the estate has closed.                                     Neither time bar applies to Vincent.  



                                                                                                                                                                                                     

                              The non-claim statute does not apply to the exempt property allowance.  



                                                                                                                                                                                

We have previously held that "family allowances" in the probate code are not "claims"  



               26             It seems likely that AS 25.20.050 itself should also be characterized as                                                                                        



providing the procedure for establishing paternity for other causes of action.                                                                                                    As we   

explained above, paternity determinations can be considered elements of a cause of                                                                                                            

action, rather than as distinct causes of action in and of themselves.                                                                                 But we do not have                

to resolve this question to decide this case because AS 13.12.114(d) provides that any  

                                                                                                                                                                                           

"conflict between this section and . . . AS 25.20.050" is controlled by AS 13.12.114, and  

                                                                                                                                                         

we do not interpret AS 13.12.114(a) as creating a separate cause of action.  



               27             AS 13.16.460(b)(2).  

                                       



               28             See AS 13.16.625-.645.  

                                                



                                                                                              -8-	                                                                                      7260
  


----------------------- Page 9-----------------------

within the meaning of AS 13.06.050.29  We therefore now hold that assertions of right                                     



to the exempt property allowance are not "claims against a decedent's estate" within the                                                                                    



                                                             30  

meaning of AS 13.16.460(b).                                        



                                                                                                                                                                       

                           Vincent assertedhis right to the exempt property allowance while the estate  



                                                                                                                                             

was still open.  The estate-closing statutes therefore do not apply to him.  



                                                                                                                                                                            

                            The only remaining possible time bar is a statute of limitations from the  



                                                                                                                                                                               

code of civil procedure.   The personal representative argues that Vincent's claim is  



                                                                                                                                                             

barred by such a statute because his claim accrued at his birth. But statutes of limitations  



                                                                                                                                                              

are not at issue here; assuming arguendo that a right to the exempt property allowance  

                                                                                                              31 the cause of action would have  

                                                                                                                                             

is a cause of action subject to a statute of limitations, 

accrued  at Seward's death, not Vincent's birth.32                                                           Even  if we applied the personal  

                                                                                                                                                                



representative's proposed two-year limitations period to Vincent's claim, Vincent would  

                                                                                                                                                                      



have been  within the limitations period  because Seward  died in 2013  and  Vincent  

                                                                                                                                                                 



              29           See In re Hutchinson's Estate                                 , 577 P.2d 1074, 1075-76 (Alaska 1978).                                 



              30  

                                                                                                                                                                         

                           Alaska Statute 13.06.050 contains general definitions for the probate code  

and provides that its definitions apply "[s]ubject to additional definitions" or "unless the                                                                                 

                                                                                                                                                            

context otherwise requires."  Alaska Statute 13.16.460 does not contain any "additional  

                                                                                                                                                                            

definitions," and the context does not require a different definition of "claim."  We are  

therefore bound to follow our holding in                                            Hutchinson  in this appeal.              



              31           We note that this exception should not be taken for granted; AS 09.10.010  

                                                                                                                                                              

provides that "[a] person may not commence a civil action except within the periods  

                                                                                                                                                                   

prescribed in this chapter after the cause of action has accrued, except when, in special  

                                                                                                                                                                    

cases, a different limitation is prescribed by statute."  (Emphasis added.)  The probate  

                                                                                                                                        

code's unique time bars likely are one such "special case."  

                                                                                                             



              32           SeeChristiansonv. Conrad-HoustonIns., 318P.3d390,396(Alaska2014)  

                                                                                                                                                                       

("A statute of limitations usually begins to run upon the occurrence of the last element  

                                                                                                                                                                  

essential to the cause of action.").  The exempt property allowance does not come into  

                                                                                                                     

existence until there is a "decedent"; a child is not entitled to the allowance while the  

                                                                                                                                                                            

parent is alive.  AS 13.12.403.  

                                         



                                                                                      -9-                                                                               7260
  


----------------------- Page 10-----------------------

asserted his rights the same year.                                                                           Vincent's claim is not time-barred by a statute of                                                                                                      



limitations.  



                                          C.                  Remand Is The Appropriate Disposition.                                                          



                                         Because Vincent is not entitled to the exempt property allowance unless he                                                                                                                                                  



establishes Seward's paternity, we remand the case to the superior court for a paternity                                                                                                                                                      



determination in conformity with AS 13.12.114.  The personal representative urges us                                                                                                                                                                                 



not to remand, arguing that AS 25.20.050 requires a DNA match "probability of 95% or                                                                                                                                                                                  



higher" to establish paternity and that Vincent cannot meet the burden of proof.                                                                                                                                                                     But the   



personal representative's interpretation is incorrect; a 95% probability only creates a                                                                                                                                                                                 



                                                                                                                                                                                                                                                             33  

presumption of parentage that may be rebutted by clear and convincing evidence.                                                                                                                                                                                     In  



                                                                                                                                                                                                                                                             

fact, genetic testing is not required by AS 25.20.050(a) to establish parentage; it need  

                                                                                            34  On remand Vincent may attempt to prove paternity in  

only be considered if offered. 



conformity with AS 13.12.114 and AS 25.20.050 even without genetic testing results,  

                                                                                                  



if such results are unavailable.  

                                                         



V.                   CONCLUSION  



                                         We REVERSE the superior court's ruling that Vincent may not seek a  

                                                                                                                                                                                                                                                                        



paternitydetermination in theprobateproceeding and REMANDfor further proceedings  

                                                                                                                                                                                                                                       



consistent with this and our earlier opinion.  

                                                                                                             



                     33                  See  AS 25.20.050(d) ("[A] genetic test described in this subsection that                                                                                                                                              



establishes a probability of parentage at 95 percent or higher creates a presumption of                                                                                                                                                                               

parentage that may be rebutted only by clear and convincing evidence.").                                                                                                                      



                     34                  See AS 25.20.050(e) (providing that court shall order testing "upon request  

                                                                                                                                                                                                                                                      

of . . . a party," not in all cases (emphasis added)).  

                                                                                                                                  



                                                                                                                                -10-                                                                                                                         7260
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC