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J. Smith v. R. Smith (2/5/93), 845 P 2d 1090
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NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
JULIA SMITH, )
)
Appellant, ) File No. S-4874
)
v. ) 4BE 89 043 DR
)
RONALD SMITH, ) O P I N I O N
)
Appellee. ) [No. 3926 - February 5, 1993]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District, Bethel,
Dale O. Curda, Judge.
Appearances: Joseph R. Faith, Alaska Legal
Services, Bethel, and Michael Gershel and
Carol Daniel, Alaska Legal Services,
Anchorage, for Appellant. Christopher R.
Cooke, Hedland, Fleischer, Friedman, Brennan
& Cooke, Bethel, for Appellee.
Before: Moore, Chief Justice, Rabinowitz,
Burke, Matthews, and Compton, Justices.
BURKE, Justice.
Julia Smith1 appeals the superior court's divorce
decree finding that Ronald Smith was not the father of Jeffrey
Smith, a child born during Julia and Ronald's marriage. Because
the superior court failed to explicitly find that Ronald had
rebutted the presumption of paternity by clear and convincing
evidence, we vacate that portion of the divorce decree declaring
Ronald not to be Jeffrey's father. The case is remanded for more
specific findings.
I. FACTS AND PROCEEDINGS
Ronald and Julia Smith were married on July 8, 1973.
Julia gave birth to her first child, Aaron, in April 1974. The
parties agree that Ronald is not Aaron's father. Julia's second
son, Jeffrey, was born on June 24, 1977.
In April 1989 Ronald commenced a divorce action in
which he alleged that he was not Jeffrey's father. Trial on the
paternity issue commenced in October 1990. Ronald testified that
he did not have sex with Julia after October 1975. He testified
that he and Julia separated in the fall of 1975 and that he
worked in Akiak throughout 1976. Ronald produced his 1976 W-2
form showing his employer as "Akiak B.I.A. Housing." Ronald also
produced his 1977, 1979, and 1980 Bureau of Indian Affairs
employment records which stated that Ronald worked in Akiak from
October 1975 through December 1976.
Julia testified that Ronald lived with her in Napakiak
in the summer and fall of 1976 and that she had sexual relations
only with Ronald during the probable time of conception. Julia's
niece also testified that Ronald lived with Julia in Napakiak in
the summer of 1976, and was still there when she left in August.
Julia introduced account records from the Napakiak
Trading Post which indicated that Ronald made payments on the
account on July 28, 1976 and September 29, 1976. However, the
records also show that the store changed Ronald's mailing address
from Napakiak to Akiak in April 1976.
Julia qualified Dr. James Geyer as an expert in
paternity blood testing. Dr. Geyer testified that his tests
showed a 99.59% probability that Ronald was Jeffrey's father.
In September 1991 the superior court issued a final
divorce decree, along with findings of fact and conclusions of
law. The superior court's findings, which were a verbatim
adoption of findings submitted by Ronald, stated in part:
The parties have lived separate and
apart since the fall of 1975.
. . . .
The Court finds that the plaintiff is
not the father of JEFFREY [SMITH] and,
therefore, the plaintiff has no right of
custody or visitation and no duty to support
this child.
This appeal followed.
II. DISCUSSION
The longstanding common law rule is that a child born
to a married woman is presumed to be the offspring of her
husband. See, e.g., Landford v. Landford, 377 P.2d 115, 116
(Colo. 1962) (en banc) (presumption dates back to Roman Law);
Alber v. Alber, 472 P.2d 321, 324 (Idaho 1970). This presumption
of a husband's paternity can be rebutted only by "clear and
convincing evidence."Landford, 377 P.2d at 117; Alber, 472 P.2d
at 327; Uniform Parentage Act 4(b), 9B U.L.A. 299 (1987). We
adopt both the presumption and the concomitant standard of proof
for rebutting it.
Our legislature has created a similar presumption
regarding paternity blood tests. Alaska Statute 25.20.050(d)
provides, in part:
The results of a blood test . . . shall
be admitted and weighed in conjunction with
other evidence in determining the statistical
probability that the putative parent is a
legal parent of the child in question. How
ever, a scientifically accepted procedure
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.
Since Dr. Geyer's tests indicated a 99.59% likelihood that Ronald
was Jeffrey's father, the presumption in AS 25.20.050(d) applies
to this case.2
The superior court's finding that "the plaintiff is not
the father of JEFFREY [SMITH]"makes no mention of the standard
of proof it used. The court's failure to indicate the standard
of proof it used requires us to remand the case. See Curran v.
Mount, 657 P.2d 389, 392 (Alaska 1982); Kupka v. Morey, 541 P.2d
740, 750 (Alaska 1975). On remand, the superior court should
explicitly determine whether Ronald has overcome the statutory
and common law presumptions of paternity by clear and convincing
evidence.3
That portion of the superior court's divorce decree
declaring Ronald not to be Jeffrey's father is VACATED and the
case is REMANDED for further proceedings in accordance with this
opinion.
_______________________________
1. In the interest of privacy, fictitious names are used
in this opinion.
2. We are not persuaded by Ronald's attempts to undermine
the results of Dr. Geyer's tests.
3. If, on remand, the parties submit proposed findings of
fact and conclusions of law, we caution the superior court to
carefully consider their content before adopting them. Verbatim
adoption of findings and conclusions prepared by counsel is
appropriate only when the findings and conclusions "reflect the
court's independent view of the weight of the evidence."
Industrial Indem. Co. v. Wick Constr. Co., 680 P.2d 1100, 1108
(Alaska 1984).
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