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State, Dept. of Revenue, CSED v. Kovac (8/6/99) sp-5150
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
STATE OF ALASKA, DEPARTMENT )
OF REVENUE, CHILD SUPPORT ) Supreme Court Nos. S-8423/8424
ENFORCEMENT DIVISION, )
) Superior Court No.
Appellant and ) 4FA-97-522 CI
v. ) O P I N I O N
DUSAN D. KOVAC, ) [No. 5150 - August 6, 1999]
Appellee and )
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Ralph R. Beistline, Judge.
Appearances: Scott Davis, Assistant Attorney
General, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau,
for Appellant/Cross-Appellee. Rita T. Allee, Fairbanks, for
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
R.M. was born to the marriage of Richard Romer and
Darlene Wright; Romer was thus presumed to be R.M.'s father. Romer
and Wright later separated and divorced. Several years afterward,
the superior court ruled that Romer was not R.M.'s father and owed
him no duty of support. Wright subsequently identified Dusan Kovac
as R.M.'s father. After genetic testing confirmed the
identification, the court entered summary judgment (1) rejecting
Kovac's claim that Romer is R.M.'s father by estoppel, (2)
establishing Kovac as the father, and (3) ordering him to pay
R.M.'s support from May 1996, when the court had declared that
Romer was not R.M.'s father. We affirm in part and reverse in
part. Because Kovac failed to join Romer as a party to this action
and offered no evidence of estoppel, we hold that the court
properly established Kovac's paternity. But because a father's
duty of support arises upon the birth of his child, we hold that
Kovac owes R.M. support from birth.
II. FACTS AND PROCEEDINGS
In 1988, after sixteen years of marriage, Darlene Wright
filed for divorce from Richard H. Romer. Wright's complaint listed
four children born of the marriage, the youngest being three-year-
old R.M. Romer answered the complaint, acknowledging that all four
of Wright's children were born of the marriage. The following year
Wright amended her complaint to assert that R.M. was not born of
the marriage. R.M. was never mentioned again in the divorce
Wright and Romer eventually settled all issues of
support, custody, visitation, and property/debt division. Their
settlement agreement, incorporated in a divorce decree issued in
Anchorage on February 22, 1991, made no provision for R.M.'s
custody or support.
In 1992 the case was transferred from Anchorage to Bethel
-- where Wright lived -- for consideration of various child support
issues. Superior Court Judge Dale O. Curda in July 1993 ordered
Romer to pay arrearages and increased his child support obligation
to reflect his increased income. There is no indication that
anyone mentioned R.M. during these proceedings. After Judge Curda
issued the July 1993 order, Wright applied to the Child Support
Enforcement Division (CSED) for assistance in collecting support
from Romer. In her application she listed her three oldest
children but did not refer to R.M.
In 1996, with CSED's assistance, Wright moved to modify
the child support order. Romer opposed Wright's motion. Evidently
believing that the motion sought an order requiring him to pay
support for R.M., Romer filed an affidavit declaring that he was
not R.M.'s biological father, that Wright had told him R.M. was not
his son when they separated in 1988, and that he no longer
maintained any relationship with R.M. Romer offered to submit to
a blood test to establish that he was not the boy's father.
Claiming that he had second-hand knowledge of the father's
identity, Romer also suggested that the putative father "could be
available for paternity testing." In addition to filing this
affidavit, Romer served Wright with a request for admission, asking
her to acknowledge that Romer is not R.M.'s biological father.
Wright did not reply to Romer's affidavit or answer his
request for admission. In May 1996, based on Romer's affidavit and
Wright's failure to respond, Judge Curda entered an order declaring
that Romer was not R.M.'s biological father and owed him no duty of
Plaintiff's minor child, [R.M.], born April 4,
[1985,] is not a child of the marriage and Defendant, RICHARD H.
ROMER owes no child support and has no child support obligation for
Five months later, Wright signed an affidavit naming
Dusan D. Kovac as R.M.'s biological father. CSED filed a complaint
against Kovac in Fairbanks (where he resided) seeking to establish
that he was R.M.'s biological father. Genetic testing later
established a 99.85% probability of Kovac's paternity.
After receiving this test result, both parties moved for
summary judgment in the paternity action. CSED, arguing that the
test proved that Kovac was R.M.'s biological father, requested an
order establishing his paternity and his duty to support R.M. from
the date of the child's birth. Kovac, pointing out that Romer was
presumed to be R.M.'s legal father because R.M. was born during the
Romers' marriage, maintained that since Romer's paternity had never
been formally disestablished, Romer was liable for R.M.'s support.
Kovac further maintained that Romer was equitably estopped from
denying paternity and should therefore remain liable for support.
The paternity action was assigned to Superior Court Judge
Ralph R. Beistline in Fairbanks. The judge granted partial summary
judgment in CSED's favor and denied summary judgment to Kovac.
Judge Beistline found that the superior court in Bethel had
effectively disestablished Romer's paternity in May 1996 when it
declared that R.M. was not a child of the Romers' marriage. Judge
Beistline further found that the recent blood test clearly and
convincingly established Kovac's biological paternity and that
Kovac had failed to present sufficient evidence to justify a trial
on his claim that Romer should be estopped from denying paternity.
Accordingly, the judge declared Kovac to be R.M.'s father and
directed him to pay R.M.'s support from the date of the Bethel
CSED appeals; Kovac cross-appeals.
A. Standard of Review
CSED challenges the superior court's refusal to hold
Kovac liable for R.M.'s support from the date of his birth. Kovac
claims that his own paternity cannot properly be established
because Romer's paternity has never been validly disestablished; he
further maintains that the court erred in summarily rejecting his
estoppel claim. These arguments present issues of law arising on
settled facts. We review legal questions de novo, adopting the
rule of law most persuasive in light of precedent, reason, and
policy. [Fn. 1]
B. The Superior Court Erred in Deciding that Kovac's Duty to
Pay Support Began When Judge Curda Disestablished Romer's Paternity
Instead of When R.M. Was Born.
CSED argues that the superior court erred in ruling that
Kovac's duty to support R.M. attached as of May 22, 1996, the date
that Judge Curda effectively disestablished Romer's paternity.
CSED insists that Kovac's child support duty arose upon R.M.'s
birth, persuasively arguing that State, CSED v. Rios [Fn. 2]
controls the issue. In Rios, relying upon statutory and common
law, we held that "a biological parent's duty of support commences
at the date of the birth of the child."[Fn. 3]
In declining to follow Rios, Judge Beistline
distinguished that case, which dealt with a child whose father had
not been identified before the court established his paternity.
[Fn. 4] He contrasted the facts in Rios from the present case, in
which "[R.M.] was born to a marriage and thus the presumption at
birth was that [Romer] was the father." In drawing this
distinction, the judge focused on a passage from Rios that states:
"[A]lthough an adjudication of paternity may be a prerequisite to
enforcement of a duty of support, it does not create the duty of
support."[Fn. 5] Judge Beistline evidently took this passage to
mean that a child's newly-established biological father can owe no
duty of support until the existing legal father's paternity is
disestablished. But this reading of Rios is mistaken. The quoted
passage from Rios simply emphasizes that, even though the
biological father's support duty cannot be enforced until his
paternity is formally established, the duty itself arises upon the
birth of his child. Rios makes this point clear by quoting the
following language from Weaver v. Chester: [Fn. 6] "[I]t is not the
father's obligation to support the child which is made contingent
upon an adjudication of paternity but simply the right to enforce
that legal obligation through legal process."[Fn. 7]
Rios thus squarely stands for the proposition that
Kovac's duty to support R.M. arose upon R.M.'s birth. As we
pointed out in Rios, this proposition reflects sound policy:
[P]recluding [an award from the date of the
child's birth] would create an incentive for men to avoid their
child support obligations for some period of time by delaying the
process of adjudicating paternity. The creation of such an
incentive would, of course, run counter to the statutory purpose of
providing for the needs of children without regard to circumstances
of birth.[ [Fn. 8]]
More recently, in Rubright v. Arnold, [Fn. 9] we affirmed
an order establishing the paternity of a biological father,
Rubright. The order held Rubright responsible for child support
accruing from the day that his son, C.A., was born. [Fn. 10] C.A.
was born while his mother was married to another man, Arnold, and
C.A.'s birth certificate listed Arnold as the father. [Fn. 11]
Accordingly, Arnold was presumed to be C.A.'s parent, and his legal
paternity had never been disestablished. [Fn. 12] By recognizing
Rubright's duty to pay support from the date of C.A.'s birth, we
effectively held that a presumptive father's paternity need not be
disestablished before a newly-established biological father's duty
to pay support arises. [Fn. 13]
Together, Rios and Rubright dictate the conclusion that
Kovac's child support duty arose upon R.M.'s birth. Accordingly,
we hold that the superior court erred in ruling that the duty began
only when Judge Curda disestablished Romer's paternity. [Fn. 14]
Kovac nevertheless argues in his cross-appeal that the
superior court erred by summarily rejecting his claim that Romer
should be estopped from denying paternity. He asserts that
"[w]hile blood testing is a useful tool, the superior court erred
by relying solely on the blood test results as dispositive, denying
[Kovac] the opportunity to develop the factual basis for an
estoppel defense." Although Kovac acknowledges the court's ruling
that he had presented insufficient evidence to support this
defense, he insists that "there is enough in the record to preclude
denying [his] defense as a matter of law without any effort to hear
and consider evidence."
But as CSED points out in response to this argument,
Kovac could not properly establish his claim of estoppel against
Romer without joining him as a party to the establishment action.
[Fn. 15] Kovac failed to do so.
Moreover, Kovac bases his argument on an unduly broad
theory of paternity by estoppel. He suggests that the record
supports a conclusion that R.M. and Romer have a close relationship
and that R.M. has come to accept Romer as his father. Relying on
three cases in which we have previously discussed the doctrine of
paternity by estoppel -- K.E. v. J.W., [Fn. 16] Wright v. Black,
[Fn. 17] and H.P.A. v. S.C.A. [Fn. 18] -- Kovac appears to assume
that Romer would be barred from denying paternity if his denial
would cause R.M. emotional harm by violating his reasonable
expectation of continuing this relationship. But we have recently
narrowed the scope of this equitable defense, holding that
paternity by estoppel applies only upon proof of economic reliance
and that "the risk of emotional harm inherent in severing a child's
relationship with a psychological parent cannot itself suffice as
a basis for invoking the doctrine of paternity by estoppel . . . ."
Kovac has failed to allege or produce admissible evidence
of any potential economic detriment to R.M. or his mother that
might bar Romer from denying paternity. Thus, even assuming that
the superior court had authority to decide Kovac's estoppel claim
in Romer's absence, its decision rejecting the claim and denying
Kovac's motion for summary judgment was proper.
We therefore REVERSE the superior court's partial denial
of CSED's motion for summary judgment, AFFIRM its order denying
Kovac's motion for summary judgment, and REMAND for entry of a
modified judgment directing that Kovac's duty of support be
recalculated as having commenced upon R.M.'s birth.
See State, CSED v. Gerke, 942 P.2d 423, 425 (Alaska 1997)
(quoting Guin v. Ha, 591 P.2d 1281, 1284 (Alaska 1979)).
938 P.2d 1013 (Alaska 1997).
Id. at 1015 (citing AS 25.20.030; Matthews v. Matthews, 739
P.2d 1298, 1299 (Alaska 1987) (superceded by rule in other
See id. at 1014.
Id. at 1015.
393 S.E.2d 715 (Ga. App. 1990) (superceded by statute in other
Id. at 717, quoted in Rios, 938 P.2d at 1015 n.5 (alteration
8 Id. at 1015 (quoting Cyrus v. Mondesir, 515 A.2d 736
(D.C. 1986) (first alteration in original)).
973 P.2d 580 (Alaska 1999).
See id. at 581, 586.
See id. at 582.
See id. at 581-83.
See id. at 584-85 (expressly stating that Rubright could be
liable for C.A.'s support even if Arnold had not been a party to
the paternity action).
This aspect of Rubright may seem to be in tension with
several cases holding that legal fathers whose biological paternity
is disestablished should normally be granted only prospective
relief from their child support obligations. See, e.g., State,
CSED v. Wetherelt, 931 P.2d 383, 387-88 (Alaska 1997). But the
tension is more apparent than real: Any potential overlap in child
support obligations between a newly-established biological father
and a former legal father may be remedied through reimbursement.
See Matthews v. Matthews, 739 P.2d 1298, 1299 (Alaska 1987) ("A
parent's duty of support encompasses a duty to reimburse other
persons who provide the support the parent owes.") (superceded by
rule in other respects). Cf. Smith v. Cole, 553 So. 2d 847, 854-55
(La. 1989) (recognizing the concept of "dual paternity"in which a
child born into a marriage with a non-biological father retains a
legal parent/child relationship based on presumptive fatherhood for
purposes of legitimacy and inheritance, while becoming the child of
a newly-established biological father for purposes of child
support). See also Flanigin v. State, CSED, 946 P.2d 446, 450
(Alaska 1997) (recognizing that "child support arrearages are
imposable by law from the date of a child's birth").
CSED alternatively argues that Judge Curda's order did not
disestablish Romer's paternity but instead essentially determined
that he had never been R.M.'s legal parent and accordingly never
owed him a duty of support. Kovac disputes this characterization
of Judge Curda's order and insists that, however construed, the
order is invalid. Given our conclusion that as R.M.'s biological
father Kovac is responsible for his support from the date of R.M.'s
birth regardless of Romer's status as a legal parent, we need not
address these arguments.
See State ex rel. Hopkins v. Batt, [Fn. 20] 573 N.W.2d 425,
432 (Neb. 1998) ("[The biological father] asserts that the conduct
of [the presumed father and mother] should preclude them from
denying [the presumed father's] paternity. However, [the presumed
father] is not a party to this action and therefore cannot be
estopped."); see also State ex rel. J.R. v. Mendoza, 481 N.W.2d
165, 175 (Neb. 1992) ("[T]he obvious weakness in [the biological
father's] theory is that the person he alleges engaged in
misrepresentations, [the presumed father], is not a party to this
899 P.2d 133 (Alaska 1995).
856 P.2d 477 (Alaska 1993).
704 P.2d 205 (Alaska 1985).
B.E.B. v. R.L.B., ____ P.2d ____, Op. No. 5114 at 16 (Alaska,
May 14, 1999).
573 N.W.2d 425 (Neb. 1998); see also State, ex rel. J.R. v. Mendoza, 481
N.W.2d 165, 175 (Neb. 1992) ("[T]he obvious weakness in [biological father's]
theory is that the person he alleges engaged in misrepresentations, [the presumed
father], is not a party to this suit.").