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Grober v. State5/8/1998
Order
Withdraw an
It is Ordered, Sua Sponte:
1. Opinion No. 4953, issued on March 6, 1998, is Withdrawn and Opinion No. 4981 is issued in its place.
2. The last paragraph on page 12 has been modified.
Entered by direction of the court.
Clerk of the Appellate Courts
Cheryl Jones, Deputy Clerk
cc: Supreme Court Justices Trial Court Judge Trial Court Appeals Clerk Publishers
Distribution: James F. Vollintine Attorney at Law PO Box 113329 Anchorage AK 99511-3329 Terisia K. Chleborad Asst Attorney General 1031 West Fourth Ave #200 Anchorage AK 99501
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.
Supreme Court No. S-7353
Superior Court No. 4FA-92-1419 CI
I. INTRODUCTION
A complaint to establish the paternity of then ten-year old C.J.W. was filed against Marc Grober. Grober argues that the action was time barred. Because actions are tolled during a child's minority, we hold that the action was timely filed. Grober also appeals the order requiring him to submit to blood testing, and the court's retroactive application of a newly enacted statute. We hold that Grober's due process rights were not violated, and that the court did not err in retroactively applying a procedural statute. Thus, we affirm.
II. FACTS AND PROCEEDINGS
D.W. gave birth to C.J.W. on February 16, 1982. D.W. claims that she had unprotected sexual intercourse with Grober nine months before C.J.W. was born, and that she did not have intercourse with anyone else at that time. Grober denies having intercourse with D.W. in 1981.
D.W. wished to establish C.J.W.'s paternity when C.J.W. started asking questions about his father. She sought help from the Child Support Enforcement Division (CSED) in May 1992. CSED filed a paternity action against Grober on August 11, 1992, and amended its complaint in September 1992. Grober denied the allegations in the complaint, and filed a motion to dismiss. The superior court denied the motion.
Presiding Judge Richard Savell had previously issued a standing order in January 1991, pursuant to Alaska Civil Rule 35 and AS 25.20.050(e), ordering the mother, child and putative father to submit to blood tests in any paternity action in which the State is a party and the putative father has denied paternity. In August 1992, a copy of this order was served on Grober along with the summons and complaint. Grober filed a motion to stay blood testing, arguing that the standing order violated his constitutional rights by permitting searches and seizures without a finding of probable cause, and that the testing should be stayed until after the motion to dismiss had been decided. Superior Court Judge Mary E. Greene stayed the blood testing for two months to consider the motion to dismiss. Upon denial of the motion to dismiss, Grober was required to submit to blood testing pursuant to the standing order.
Prior to trial, the Judge ruled that AS 09.25.051, as amended by Chapter 7, SLA 1995, effective July 11, 1995, applied to the present case. Grober argued that it did not apply because it became effective after the case was filed, and because the legislature did not include a provision expressly making the bill retroactive. The trial court found that issues regarding admissibility of evidence do not arise until the evidence is proffered, and thus, no issue of ret
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