Meyer v. State, Department of Revenue, Child Support Enforcement Division Ex Rel. N.G.T.

994 P.2d 365, 1999 Alas. LEXIS 175, 1999 WL 1268050

• Court: Alaska Supreme Court
• Decided: December 30, 1999
• Docket: S-8187
• Status: Published

Opinions

OPINION

MATTHEWS, Chief Justice.

I. INTRODUCTION

In this paternity case, the Child Support Enforcement Division (CSED) seeks to establish Howard Meyer’s parentage of N.G.T. The superior court granted summary judgment to CSED, ruling that Meyer is N.G.T.’s biological father. Meyer appeals, arguing that his denial of intercourse with N.G.T.’s mother during the possible period of conception created a genuine issue of material fact. Because we agree that Meyer’s denial of intercourse creates a question of fact sufficient to withstand summary judgment, we reverse the superior court’s decision and remand Meyer’s case for trial.

II. FACTS AND PROCEEDINGS

M.T. lives in Savoonga. Howard Meyer lives in Anchorage. Meyer met M.T. in Nome in 1987 and subsequently developed a sexual relationship with her.

From April 8 through April 12, 1992, M.T. attended a conference in Anchorage. A receipt from M.T.’s hotel lists four telephone calls placed to Meyer’s home and office on April 8 and 9. M.T. alleges that she and Meyer had intercourse on April 9,1992. She gave birth to N.G.T. on December 26, 1992. M.T. claims that Meyer is N.G.T.’s biological father.

Although Meyer expressed uncertainty regarding the precise dates and locations of his sexual contacts with M.T., he admitted to having a sexual relationship with her. However, Meyer stated under oath that his last sexual encounter with M.T. occurred in 1991, and he denied having intercourse with her between March 15, 1992, and April 15, 1992, the possible period of N.G.T.’s conception.

Gene Proof Technologies in Nashville, Tennessee, analyzed blood samples from N.G.T., M.T., and Meyer. The test placed the probability of Meyer’s parentage at 99.98%, raising a presumption of paternity under AS 25.20.050(d).¹ The genetic odds favoring Meyer’s paternity are said to be 6243 to 1.

After discovery, CSED moved for summary judgment on the paternity issue. CSED authenticated the genetic test results with a six-page affidavit from the director of Gene Proof Technologies. The affidavit emphasized the accreditation of Gene Proof Technologies and provided a detailed explanation of the methodology and results of the testing procedures. Meyer opposed CSED’s motion, arguing that his denial of sexual intercourse with M.T. during the period of N.G.T.’s conception sufficiently rebutted the presumption of his paternity for purposes of summary judgment.

The superior court granted CSED’s motion for summary judgment. The court found that CSED had satisfied its initial burden by establishing a 99.98% probability of Meyer’s paternity, and by sufficiently authenticating the genetic test results with the director’s six-page affidavit.

Meyer moved for reconsideration. He offered the affidavit of a paternity testing expert, and submitted his sworn interrogatory answers in which he denied having intercourse with M.T. during the period of possible conception. The superior court considered the motion, but ultimately denied Meyer’s request to set aside the paternity judgment. The court found that Meyer’s interrogatory answers denying intercourse with M.T. during the relevant period did not reasonably rebut CSED’s evidence of paternity. Meyer appeals.

III.DISCUSSION

The trial court granted summary judgment in favor of CSED, establishing Meyer’s paternity as a matter of law. Meyer argues that his sworn denial of sexual intercourse with M.T. during the period of N.G.T.’s conception was sufficient to raise a material fact issue precluding summary judgment. We agree.

We review grants of summary judgment de novo.² We must “determine whether any genuine issue of material fact exists and whether the moving party is entitled to judgment on the law applicable to the established facts.”³ All factual inferences are drawn in favor of the non-moving party, and the existence of a dispute regarding any material fact precludes summary judgment.⁴

The party opposing summary judgment need not produce all of its evidence but instead must only show the existence of a genuine factual dispute.⁵ In rendering its summary judgment determination, the court should examine the pleadings, affidavits, and discovery answers to ascertain whether any genuine issues of material fact exist.⁶ We have noted that “any evidence sufficient to raise a genuine issue of material fact” precludes a summary finding of paternity.⁷

The court does not weigh the evidence or witness credibility on summary judgment.⁸ Therefore, while it is true that the genetic test results establish a rebuttable presumption of paternity in this case and shift the burden to the putative father to prove non-paternity by clear and convincing evidence, the clear and convincing standard is irrelevant on summary judgment. Recently we held:

The standard of proof for setting aside a release is clear and convincing evidence. But that standard only comes into play when a fact finder is called upon to consider the parties’ reasonable expectations.... It has no direct application at the summary judgment stage.

[9]

The clear and convincing standard is only significant in the context of weighing the evidence.

Meyer contends that his interrogatory answers establish a material factual dispute regarding his purported intercourse with M.T. during the period of N.G.T.’s conception. Meyer claims that he and M.T. had intercourse on only two occasions, and that the last time was in 1991.¹⁰ This would have been well before the period during which conception of N.G.T. took place.

Meyer’s sworn denial of sexual intercourse with M.T. during the period of N.G.T.’s conception creates a factual issue sufficient to preclude summary judgment in the present case. Although we have recognized that a “scintilla of contrary evidence” is insufficient to create a genuine issue of fact,¹¹ a putative father’s sworn denial of sexual intercourse during the possible period of conception is more than a scintilla of evidence.¹² Furthermore, this denial is not merely con-elusory since Meyer’s basis of knowledge for the alleged fact — that he did not have sexual intercourse with the mother during the period of conception — is clear.

We do not hold that a denial of paternity contained in an unsworn answer to a complaint would suffice to oppose summary judgment.¹³ Rather, the defendant must be able to point to “specific facts” controverting a showing of paternity, and the evidence relied upon must be sworn to or must be otherwise admissible. Meyer’s sworn denial of intercourse during the possible conception period meets this test.

In reaching our conclusion, we remain cognizant of the significant statistical odds suggesting Meyer’s paternity. CSED supported its summary judgment motion with scientific test results claiming a 99.98% probability of Meyer’s paternity.¹⁴ This statistical showing may prove decisive at trial. For purposes of summary judgment, however, the court must interpret factual disputes in favor of the non-movant.¹⁵ Viewed in this light, Meyer’s denial is sufficient to create a genuine factual issue despite the scientific evidence.

IV. CONCLUSION

We REVERSE the superior court’s grant of summary judgment and REMAND this case for further proceedings.

1 . AS 25.20.050(d) creates a presumption of parentage for certain genetic test results which establish a probability of parentage at 95% or higher.

2 . See Beilgard v. State, 896 P.2d 230, 233 (Alaska 1995).

3 . Id. (quoting R.E. v. State, 878 P.2d 1341, 1345 (Alaska 1994)).

4 . See Schumacher v. City and Borough of Yakutat, 946 P.2d 1255, 1256 (Alaska 1997).

5 . See Totem Marine Tug & Barge, Inc. v. Alyeska Pipeline Serv. Co., 584 P.2d 15, 25 (Alaska 1978).

6 . See Alaska R. Civ. P. 56(c); French v. Jadon, Inc., 911 P.2d 20, 24 (Alaska 1996); Totem Marine Tug & Barge, 584 P.2d at 19.

7 . In the Matter of J.B., 922 P.2d 878, 881 n. 4 (Alaska 1996) (emphasis added).

8 . See Gudenau & Co. v. Sweeney Ins., Inc., 736 P.2d 763, 765 (Alaska 1987) (“The court does not attempt to weigh the evidence nor evaluate the credibility of witnesses on a motion for summary judgment.”).

9. Philbin v. Matanuska-Susitna Borough, 991 P.2d 1263, 1268 (Alaska 1999); see also Gablick v. Wolfe, 469 P.2d 391 (Alaska 1970) (rejecting the contention that a court must consider the clear and convincing standard on summary judgment where the standard would apply at trial because Rule 56(c) only requires a showing that a genuine issue of material fact exists to be litigated and not a showing that a party will ultimately prevail at trial). In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the United States Supreme Court announced the federal standard for summary judgment, finding that "the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case." This court, however, rejected the federal standard for summary judgment and instead reaffirmed the holding in Gablick. See Moffatt v. Brown, 751 P.2d 939, 943-44 (Alaska 1988).

10 .In his sworn answers to interrogatories, after stating that he had sexual intercourse only twice with the mother, Meyer stated: "My recollection is that the first was in the winter of 1988 or 1989, and the other in 1991.” Drawing reasonable inferences from this statement in favor of Meyer, as we must at this stage in the proceedings, this is a statement by him that the last time he had sex with the mother was in 1991 and thus that he did not have sex with the mother during the period of possible gestation.

11 . Yurioff v. American Honda Motor Co., 803 P.2d 386, 389 (Alaska 1990).

12 . We note that the Minnesota Court of Appeals has reached a similar result in two analogous cases. See Williams v. Curtis, 501 N.W.2d 653, 656 (Minn.App.1993) (holding putative father's denial of intercourse with mother during period of conception sufficient to preclude summary judgment despite 99.21% statistical probability of paternity); Nash v. Allen, 392 N.W.2d 244, 247 (Minn.App.1986) (holding putative father’s denial of intercourse with mother during period of conception sufficient to preclude summary judgment despite 98.864% statistical probability of paternity); see also People ex rel. M.C., 844 P.2d 1313 (Colo.App.1992) (reversing the trial court's grant of judgment notwithstanding the verdict where the jury believed the putative father’s denial of sexual intercourse during the period of conception and found that he successfully rebutted, by clear and convincing evidence, the presumption of paternity attached by (a) the child’s birth within 300 days after the marriage was terminated and (b) an unchallenged blood test establishing a 99.9% probability of paternity).

In Smith v. Smith, 845 P.2d 1090, 1092 (Alaska 1993), tire superior court, after a trial, concluded that a husband was not the father of his wife’s child based on the husband's testimony that he did not have sexual intercourse with her during the possible period of conception. This finding was made despite scientific evidence purporting to show a 99.59% probability of paternity. See id. We vacated the judgment and remanded the case for further proceedings because the trial court failed to indicate whether the husband had overcome the statutory and common law presumptions of paternity by clear and convincing evidence. See id. at 1092-93. But we did not reject the possibility that findings of non-paternity by clear and convincing evidence would be sustainable despite the scientific evidence to the contrary. See id.

13 . See Alaska R. Civ. P. 56(e) ("When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.”); see also Rule 56(c) (listing answers to interrogatories among the documents that can demonstrate a triable issue of fact). Compare People ex rel. J.M.A., 803 P.2d 187, 192-93 (Colo.1990) (holding that a general denial of paternity by a putative father, without any sworn statement in support, does not raise a genuine issue of material fact so as to preclude summary judgment) with People ex rel. M.C., supra note 12.

14 . Meyer also challenges this scientific evidence. He contends that it was not adequately authenticated, and he filed the affidavit of a genetic scientist who expressed substantial doubt as to the accuracy of the probability of paternity. Because Meyer’s denial of sexual intercourse during the period of conception creates a genuine issue of material fact, it is unnecessary to resolve whether these challenges also created genuine issues of material fact.

15 . See Merdes v. Underwood, 742 P.2d 245, 248 (Alaska 1987).