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Alaska Dept. of Revenue v. A. H. (8/19/94), 880 P 2d 1048
NOTICE: This is subject to formal 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,
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, DEPARTMENT )
OF REVENUE, CHILD SUPPORT ) Supreme Court No. S-5578
ENFORCEMENT DIVISION, ) Superior Court No.
) 4FA-92-1881 CI
v. ) O P I N I O N
A. H., )
Appellee. ) [No. 4113 - August 19, 1994]
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Jay Hodges, Judge.
Appearances: R. Poke Haffner, Assistant
Attorney General, Fairbanks, and Charles E.
Cole, Attorney General, Juneau, for
Appellant. Andrew Harrington, Alaska Legal
Services Corporation, Fairbanks, for
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices.
[Eastaugh, Justice, not participating].
This case presents the issue whether the Alaska Child
Support Enforcement Division (CSED) is required to pay for
paternity testing to determine the parentage of a child who has a
legally presumed father.
I. FACTUAL AND PROCEDURAL BACKGROUND
A.H. and D.H., a married couple, separated and filed
for dissolution of marriage.1 At the February 1992 dissolution
hearing, A.H. was pregnant with D.J., the father of whom she
alleged to be J.Z. Because J.Z. did not acknowledge paternity,
the court refused to grant the dissolution.
A.H. sought the assistance of CSED to establish
paternity in J.Z. CSED refused, based on the state law
presumption that D.H. -- her husband at the time of conception --
was D.J.'s father. A.H. then filed a paternity action against
J.Z., who denied paternity.
Next, A.H. filed suit against CSED, claiming that
because she received Aid to Families with Dependent Children
(AFDC), CSED must pay for paternity testing. A.H. and D.H. both
filed affidavits stating that D.H. was not D.J.'s father. The
superior court granted A.H.'s motion for summary judgment and
ordered CSED to provide assistance for testing to determine the
paternity of D.J.2 CSED appeals. AS 22.05.010.
A. This Case Falls Within the Public Interest
Exception to the Mootness Doctrine.
After the superior court ordered CSED to provide
paternity testing, the parties agreed that CSED would not seek a
stay of the order and A.H. would not argue mootness before this
court. CSED then provided paternity testing which established
that J.Z. is D.J.'s father.
We expressed concern that the case was moot and
requested that both parties brief the issue of whether the case
falls within the "public interest"exception to the mootness
doctrine. The public interest exception requires that an issue
be (1) capable of repetition, (2) capable of evading review, and
(3) of considerable public interest.3 Hayes v. Charney, 693 P.2d
831, 834 (Alaska 1985).
We conclude that each requirement of the public
interest exception test has been met. The record indicates that
this scenario -- married women seeking to establish paternity in
persons other than their husbands -- is repeated regularly. The
issue frequently evades review because trial courts prefer not to
leave the question of a child's paternity unsettled pending
appeal. Thus a "paternity issue is likely to be determined
before [an] appeal can be perfected."4 Moreover, the efficiency
and effectiveness of child support administration is of
considerable public interest. Thus we will address the merits of
B. CSED Must Pay for Paternity Testing.5
Alaska Statute 25.27.040 provides in part:
Determination of Paternity. (a) The
agency shall 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. When the agency is
a party in an action in which paternity is
contested, it shall request and pay for tests
and procedures . . . . The agency may
recover the costs of the tests as a cost of
the action, except that costs may not be
recovered from . . . [an AFDC recipient].
(Emphasis added). A.H. contends that because D.H. is not D.J.'s
father, D.J. was born "out of wedlock." Furthermore, because she
receives AFDC, CSED must pay for paternity testing to determine
the paternity of D.J.
In Alaska there is a statutory presumption of the
husband's paternity.6 Moreover, we recently adopted "[t]he
longstanding common law rule . . . that a child born to a married
woman is presumed to be the offspring of her husband."7 Smith v.
Smith, 845 P.2d 1090, 1092 (Alaska 1993). This presumption can
be rebutted by clear and convincing evidence. Id. CSED argues
that given the presumption of D.H.'s paternity, D.J. was not born
"out-of-wedlock"for purposes of AS 25.27.040(a); therefore, CSED
has no duty to pay for paternity testing.
We disagree. A.H. and D.H. each filed affidavits that
D.J. is not D.H.'s child. There is no evidence of collusion on
their part. For the limited purpose of construing
AS 25.27.040(a) -- i.e., whether a paternity action is
"contested" -- we hold that these unimpeached affidavits
constitute clear and convincing evidence sufficient to rebut the
presumption of D.H.'s paternity and to require CSED to pay for
State law provides that AFDC recipients are entitled to
paternity testing at CSED's expense where there is a "contested
paternity action." We hold that under Alaska law, the term
"contested paternity action"applies to situations involving
children born to (1) unmarried women, and (2) married women, such
as A.H., who have overcome the presumption of the husband's
paternity by clear and convincing evidence. Because CSED
unlawfully withheld such assistance, the superior court properly
ordered it to provide paternity testing.9
1 Alaska law authorizes a dissolution of marriage
pursuant to AS 25.24.200-.260. This process is different than a
divorce pursuant to AS 25.24.010-.180. Dissolution requires that
the parties agree to a separation of property, assumption of
unpaid obligations and the support and custody of children of the
marriage, or child with whom the woman is pregnant at the time
dissolution is sought. AS 25.24.200(1)-(4).
2 AS 25.27.210(e), which applies to marital and domestic
relations, including paternity determinations, provides in part:
The superior court may enjoin agency
action in excess of constitutional or
statutory authority at any stage of an agency
proceeding. If agency action is unlawfully
or unreasonably withheld, the superior court
may compel the agency to initiate action.
3 Alaska state courts are courts of general jurisdiction.
Accordingly, mootness is a matter of judicial policy and
discretion. R.L.R. v. State, 487 P.2d 27 (Alaska 1971); In re
G.M.B., 483 P.2d 1006 (Alaska 1971).
4 This court has held that such time considerations
affect the "evading review"prong of the test. See Doe v. State,
487 P.2d 47, 53 (Alaska 1971) (reviewing pre-adjudication
juvenile detention order where appeal followed adjudication);
G.M.B., 483 P.2d at 1008 (reviewing pre-disposition juvenile
detention order where appeal followed disposition hearing).
5 Because this case involves a question of law, we apply
the substitution-of-judgment standard of review. Loeb v.
Rasmussen, 822 P.2d 914, 917 (Alaska 1991).
6 AS 18.50.160(d) provides:
If the mother was married at the time of
conception or birth, the name of the husband
shall be entered on the certificate as the
father of the child unless paternity has been
determined otherwise by a court of competent
jurisdiction, in which case the name of the
father, if determined by the court, shall be
See also Alaska CSED Procedure Manual 6600.5 (employing nearly
7 This interpretation is consistent with the great weight
of authority. See, e.g., Wilkins v. Georgia Dep't of Human
Resources, 337 S.E.2d 20, 22 (Ga. 1985); Johnson v. Studley-
Preston, 812 P.2d 1216, 1219 (Idaho 1991); Pursley v. Hisch, 84
N.E.2d 270, 271 (Ind. App. 1949); Smith v. Robbins, 283 N.W.2d
725, 729 (Mich. App. 1979); Gursky v. Gursky, 242 N.Y.S.2d 406,
409 (N.Y.Sup. 1963); In re Legitimation of Locklear by Jones, 334
S.E.2d 46 (N.C. 1985); State v. Coliton, 17 N.W.2d 546, 549 (N.D.
1945); In re Marriott's Estate, 515 P.2d 571, 573 (Okl. 1973).
8 Rebutting the presumption in this manner would not be
dispositive of the ultimate issue of D.J.'s paternity. For
example, if J.Z.'s test came back excluding him as D.J.'s father,
then CSED certainly could require testing of D.H. at CSED's
9 Given this disposition, we need not address A.H.'s due
process, equal protection and right-to-privacy claims under the
United States and Alaska Constitutions, or A.H.'s federal