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Wright v. Black (7/23/93), 856 P 2d 477
Notice: This is subject to formal correction
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THE SUPREME COURT OF THE STATE OF ALASKA
MICHAEL A. WRIGHT, )
) Supreme Court File No. S-5062
Appellant, ) Superior Court File No.
) 3AN-90-10601 Civil
ROBYN L. (WRIGHT) BLACK, ) O P I N I O N
Appellee. ) [No. 3981 - July 23, 1993]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
John Reese, Judge .
Appearances: Patrick J. McKay, Law
Offices of Patrick J. McKay, Anchorage, for
Appellant. Johnny O. Gibbons, Dickerson &
Gibbons, Anchorage, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews and Compton,
Michael Wright claims he was given inadequate notice
that Divorce Master Andrew M. Brown would consider his
motion for paternity testing at a hearing regarding
Robyn (Wright) Black's motion to modify child support.
He claims that this inadequacy of notice violated his
constitutional right to due process of law. He further
claims that Master Brown's recommendation, approved by
Superior Court Judge John Reese, that he be estopped
from denying paternity, and Judge Reese's denial of his
motion for reconsideration, constitute error. We
I. FACTUAL AND PROCEDURAL BACKGROUND
During Michael and Robyn's marriage, Robyn had two
children, Devon and Damon. When Damon was born in 1988
Michael and Robyn doubted whether Michael was Damon's
father. Nevertheless, Michael was listed as Damon's
father on the birth certificate and in Michael and
Robyn's dissolution of marriage petition. Damon was
two months old when Michael and Robyn separated.
Michael and Robyn's marriage was dissolved in February
1991. Michael agreed to pay Robyn $600 per month for
the support of both children. At that time, Damon was
becoming deaf and was experiencing a problem with his
balance. Damon has since been diagnosed as having
Leukodystrophy, a brain disease.
Robyn moved to modify child support or to receive an
increase in medical coverage. A hearing on Robyn's
motion was scheduled for December 2, 1991. The Wrights
were also ordered to be prepared to address visitation
Michael then moved for a paternity test and for a
modification of the child custody, visitation and
support decree. He requested that should the tests
prove that he was not Damon's father, the court modify
the dissolution agreement as to Damon. Robyn filed an
opposition December 2.
At the December 2 hearing, Master Brown announced that
he would address Michael's motion for paternity testing
at that time. Neither Michael nor Robyn was
represented by counsel, and neither objected to
resolving the paternity issue.
Master Brown found by a preponderance of evidence:
(1) that the parties knew either before,
at or shortly after Damon's birth of the
possibility that Mr. Wright may not have been
the father, (2) that they knew of the
possibility of paternity testing but did not
do it, (3) that Mr. Wright held himself out
to Damon and others as Damon's father, (4)
that both parties voluntarilly [sic] and
knowingly entered into the Petition for
Dissolution of Marriage specifying that Damon
was a child of the marriage with Mr. Wright
having specific rights and responsibilities
as to both children, (5) that they both so
testified at the dissolution hearing and (6)
that Mr. Wright is the one whom Damon knows
and looks toward as his father.
Master Brown's report recommended that Michael's
conduct estop him from challenging his paternity of
Damon. The report recommended that the parties'
dissolution decree be amended to make Michael
responsible for two-thirds and Robyn one-third of
Damon's non-insured medical expenses. Judge Reese
approved the Master's report, denied Michael's motion
for paternity testing, and amended the dissolution
decree in accordance with the report.
Judge Reese denied Michael's motion for reconsideration
regarding the paternity issue.1 Michael appeals.
A. STANDARD OF REVIEW
A constitutional issue presents a question of law,
which we review de novo. Therefore, we will apply our
independent judgment. Arco Alaska, Inc. v. State, 824
P.2d 708, 710 (Alaska 1992).
Whether the superior court has the power to apply the
doctrine of equitable estoppel to cases where a father
denies paternity is also a question of law. "On
questions of law, this court is not bound by the lower
court's decision; . . . Our duty is to adopt the rule
of law that is most persuasive in light of precedent,
reason, and policy." Guin v. Ha, 591 P.2d 1281, 1284
n.6 (Alaska 1979).
Whether an estoppel exists is generally a question of
fact.2 State Compensation Ins. Fund v. Workers'
Compensation Appeals Bd., 706 P.2d 1146, 1153 (Cal.
1985); 31 C.J.S. Estoppel 163. "Findings of fact
shall not be set aside unless clearly erroneous, and
due regard shall be given to the opportunity of the
trial court to judge the credibility of the witnesses."
Alaska Civil Rule 52(a).
B. MICHAEL'S DUE PROCESS RIGHTS
Michael claims he had no notice that Master Brown would
resolve the paternity issue at the December 2 hearing.
He claims this lack of notice constituted a violation
of his right to procedural due process of law under the
In response, Robyn notes that Michael failed to object,
even after Master Brown asked if Michael or Robyn had
any problems with taking testimony on the paternity
issue. She argues that since Michael testified
regarding the paternity issue and had the opportunity
to cross-examine her, he received all process to which
he was due.
Procedural due process under the Alaska Constitution
requires "notice and opportunity for hearing
appropriate to the nature of the case." Aguchak v.
Montgomery Ward Co., 520 P.2d 1352, 1356 (Alaska 1974)
(quoting Mullane v. Central Hanover Bank & Trust, 339
U.S. 306, 313 (1950)). In Carvalho v. Carvalho, 838
P.2d 259 (Alaska 1992), we held that the trial court
erred in refusing to allow a party to testify at a
hearing regarding his child support arrearage. Id. at
263. Carvalho is not apposite, however, since both
Michael and Robyn testified and were available for
In Cushing v. Painter, 666 P.2d 1044 (Alaska 1983), we
held that the superior court violated a party's due
process rights when it decided the question of
permanent custody after an "interim hearing,"held for
the limited purpose of determining custody for the
upcoming school year. Id. at 1046. In Cushing the
parties did not know until after the hearing that
permanent custody would be decided. In this case the
Wrights had notice at the hearing that the question of
paternity testing would be addressed. Arguably, this
notice still may not have been constitutionally
sufficient. An announcement at the beginning of the
hearing may have been little better than no notice at
all. Michael had no time to prepare a presentation or
an argument on the paternity issue.
Assuming that Master Brown's decision to determine the
paternity issue violated due process, we conclude that
Michael waived his right to object. Michael did not
object when Master Brown announced at the beginning of
the hearing that he would resolve the paternity issue,
when he asked if anyone had a problem with his taking
testimony on both issues, or when he directed his
questions to the paternity issue. "By consenting to
certain procedures or by failing to object to others, a
party may waive those rights which are arguably
encompassed within due process guarantees." In re
C.L.T., 597 P.2d 518, 522 (Alaska 1979).
Michael contends that his failure to object timely at
the hearing should be excused because he was not
represented by counsel. This court may relax certain
procedural requirements in view of a litigant's pro se
status. Smith v. Sampson, 816 P.2d 902, 906 (Alaska
1991) (considering issues not raised in pro se
litigant's statement of points on appeal); see also
Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987) ("the
pleadings of pro se litigants should be held to less
stringent standards than those of lawyers"). However,
"[c]ourts should not save a litigant from his choice of
lawyer, including when a litigant chooses himself as
legal representative." Bauman v. State, Div. of Family
& Youth Servs., 768 P.2d 1097, 1099 (Alaska 1989).
This court has declined "to require judges to warn pro
se litigants on aspects of procedure when the pro se
litigant has failed to at least file a defective
If Michael had attempted to object, or even hinted that
he was unprepared to handle the paternity issue, then
Breck might apply. While we may relax formal
requirements for pro se litigants, even a pro se
litigant must make some attempt to assert his or her
C. ESTOPPEL FROM DENIAL OF PATERNITY
We have considered the application of equitable
estoppel to those who would deny paternity. H.P.A. v.
S.C.A., 704 P.2d 205, 208 (Alaska 1985). In H.P.A., we
cited with approval the standards for equitable
estoppel set forth in Clevenger v. Clevenger, 11 Cal.
Rptr. 707, 714 (Cal. App. 1961):
(1) [r]epresentation (direct or implied)
of husband to child that he is the father;
(2) husband intended his representation to be
accepted and acted on by the child; (3)
child relied on the representation and
treated husband as father and gave his love
and affection to husband; and (4) child was
ignorant of the true facts.
H.P.A., 704 P.2d at 208.
The husband's representation works to the child's
detriment as follows: (1) the child is deprived of the
mother's potential action to hold the natural father
responsible for the support of the child; (2) the child
gives his love and affection to the husband, expecting
care and support until adulthood. Denying paternity
later inflicts an emotional injury on the child; (3)
the child, who has held himself out as legitimate,
suffers a social injury when that status is removed.
Clevenger, 11 Cal. Rptr. at 714-15. Furthermore, in
Damon's case, the relationship between Damon and Devon
is at risk if the children now discover they have
The application of the doctrine of estoppel to
paternity cases is not new. Estoppel has been applied
to the putative father in Clevenger and in Johnson v.
Johnson, 286 N.W.2d 886, 887 (Mich. App. 1979). In
Gossett v. Ullendorff, 154 So. 177, 181 (Fla. 1934),
the mother was estopped from denying her late husband's
paternity to the childrens' detriment. In Morrell v.
Giesick, 610 P.2d 1189, 1191 (Mont. 1980), the mother
was estopped from denying her ex-husband's paternity.
We conclude that the application of equitable estoppel
to paternity cases advances sound policies in the law,
and therefore adopt its application.
The superior court found that the Clevenger standards
had been met. The record supports the Master's
findings that Michael knew of the possibility that he
was not Damon's father, but held himself out to others
as Damon's father despite that possibility. The
finding that Michael is the only man Damon looks to as
his father can be implied from testimony that Michael
visited Damon and Devon regularly, supported both
children, and took Damon to visit his family in
Wisconsin. The superior court's finding of estoppel is
not clearly erroneous.
D. RELIEF UNDER ALASKA CIVIL RULE 60(b)
Michael and Robyn's dissolution decree included a
determination that Damon was a child of the marriage.
Alaska Civil Rule 60(b) provides for relief from a
final judgment where mistake, inadvertence, surprise,
excusable neglect, newly discovered evidence, fraud or
any other reason justifying relief has occurred.
Michael has failed to show any reason justifying relief
under Rule 60(b). He had reasons to doubt his
paternity from the time of Damon's birth. He cannot
now set aside a previous determination that he is
The lack of notice that the paternity issue would be
taken up at the December 2 hearing may have violated
Michael's right to procedural due process of law under
the Alaska Constitution. However, Michael waived his
due process rights when he failed to make any attempt
to object at the hearing. Michael is estopped from
denying his paternity by his previous representations
that he is Damon's father. Further, Michael is not
entitled to relief under Alaska Civil Rule 60(b). The
superior court's order is AFFIRMED.
1. Michael also appeals the denial of his motion for
reconsideration, which claimed that he did not have
adequate time to prepare for a hearing on the paternity
issue. Since his appeal raises the same issue, we do
not need to address denial of his motion for
2. Estoppel becomes a question of law when the facts are
clearly established. American Falls Canal Sec. Co. v.
American Sav. and Loan Ass'n, 775 P.2d 412, 415 (Utah
1989); 31 C.J.S. Estoppel 163.
3. Section 7 of the Alaska Constitution states that "[n]o
person shall be deprived of life, liberty, or property,
without due process of law." Michael's brief fails to
address his right to due process of law under the
United States Constitution.