State on behalf of B.M. v. Brian F. ( 2014 )

Nebraska Advance Sheets
106 288 NEBRASKA REPORTS
State of Nebraska on behalf of B.M.,
a minor child, appellant, v.
Brian F., appellee.
___ N.W.2d ___
Filed May 16, 2014. No. S-12-1123.
1. Modification of Decree: Child Support: Appeal and Error. Modification of
child support payments is entrusted to the trial court’s discretion, and although,
on appeal, the issue is reviewed de novo on the record, an appellate court will
affirm the trial court’s decision absent an abuse of discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists when the
reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying just results in matters submitted
for disposition.
3. Paternity: Child Support. Pursuant to Neb. Rev. Stat. § 43-1402 (Reissue
2008), child support in a paternity action is to be determined in the same manner
as in cases of a child born in lawful wedlock.
4. Modification of Decree: Child Support: Proof. A party seeking to modify a
child support order must show a material change in circumstances which (1)
occurred subsequent to the entry of the original decree or previous modification
and (2) was not contemplated when the decree was entered.
5. Modification of Decree: Child Support. Among the factors to be considered
in determining whether a material change of circumstances has occurred are
changes in the financial position of the parent obligated to pay support, the
needs of the children for whom support is paid, good or bad faith motive of the
obligated parent in sustaining a reduction in income, and whether the change is
temporary or permanent.
6. ____: ____. The paramount concern in child support cases, whether in the
original proceeding or subsequent modification, remains the best interests of
the child.
7. Modification of Decree: Child Support: Proof. The party seeking the modifica-
tion of child support has the burden to produce sufficient proof that a material
change of circumstances has occurred that warrants a modification.
8. Courts: Jurisdiction. In civil cases, a court of general jurisdiction has inher-
ent power to vacate or modify its own judgment during the term in which it
was issued.
Appeal from the District Court for Douglas County: P eter
C. Bataillon, Judge. Reversed and remanded for further
proceedings.
Kathryn L. Hoyme and Sara E. Preisinger for appellant.
Brian F., pro se.
Nebraska Advance Sheets
STATE ON BEHALF OF B.M. v. BRIAN F. 107
Cite as 288 Neb. 106
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
Brian F. signed a notarized “Acknowledgement of Paternity”
on January 16, 1995, stating that he is the biological father
of B.M., the minor child at issue in this case. Shirley M. had
given birth to B.M. in August 1994. The State of Nebraska on
behalf of B.M. filed a “Petition for Establishment of Paternity
and Support” in the district court for Douglas County, and a
decree of paternity was filed on July 18, 1996. The decree
established Brian as the legal father of the child and ordered
him to pay child support. In 2009, Brian’s child support pay-
ment was ordered increased. Brian testified that he had suspi-
cions he was not the biological father in 1996.
In 2011, Brian sought to modify the child support. He
filed pleadings in November 2011 and February and June
2012, seeking to reduce or terminate his child support obli-
gation. During the course of the modification proceedings,
genetic testing results excluded Brian as the biological father
of B.M. No guardian ad litem was appointed to protect the
child. Because of the genetic testing results, in an order filed
October 29, 2012, the district court for Douglas County treated
the action as a challenge to the acknowledgment, as though
pursued under Neb. Rev. Stat. § 43-1409 (Reissue 2008);
“[set] aside the finding of paternity,” as recommended by the
referee; and terminated Brian’s child support obligation. The
State on behalf of B.M. appeals, claiming, inter alia, that the
district court erred when it “void[ed] the determination of
paternity . . . and terminat[ed] [Brian’s] child support obli-
gation.” As explained below, although Brian remains free to
do so, the validity of the judgment of paternity has not been
attacked by Brian and the State has not agreed to set aside the
paternity decree. And although we are not unsympathetic to
Brian’s current status, we nevertheless must conclude, based
on established principles, that the district court erred when it
converted the action to modify child support to a disestablish-
ment action and terminated child support based solely on the
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results of genetic testing. We therefore reverse the order of
October 29, 2012, and remand the cause for a determination of
modification of child support.
STATEMENT OF FACTS
The minor child at issue in this case, B.M., was born in
August 1994. Approximately 5 months after the birth of B.M., on
January 16, 1995, Brian signed a notarized “Acknowledgement
of Paternity,” in which he acknowledged that he was the bio-
logical father of B.M. On July 18, 1996, a decree of paternity
was filed. Under the decree, Shirley was found to be the
mother of B.M. The record in the present case suggests that
in the paternity action proceeding, the acknowledgment served
as a basis for the factual finding that Brian was the biological
father and the judgment of paternity established that Brian was
the legal father. See Neb. Rev. Stat. § 43-1412 (Cum. Supp.
1996). The decree serves as a judgment. The decree of pater-
nity also ordered Brian to pay child support in the amount of
$50 per month and to provide health insurance for B.M. The
decree and acknowledgment were received as evidence in the
current proceeding to modify support.
On December 15, 2008, the State, which was providing
public assistance, filed an application for modification of child
support. The district court entered an order on February 18,
2009, increasing Brian’s child support payments to $369 per
month. Brian testified that he was aware of this child support
order because the money was taken out of his paycheck.
On November 17, 2011, Brian, pro se, filed a “Petition for
Modification of Child Support.” In his petition, Brian alleged
that his existing child support obligation created a severe eco-
nomic hardship and attached a “Child Support Worksheet,”
outlining his request for a reduction in child support. Brian also
made a request for genetic testing. The State filed its answer on
January 20, 2012. On February 13, Brian filed another “Petition
for Modification of Child Support.” The February 13 “Petition
for Modification of Child Support” included documentation,
including a “Child Support Worksheet,” a letter from his
employer regarding salary, pay stubs, and letters regarding
delinquent taxes. Evidently, the matter was referred to a child
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Cite as 288 Neb. 106
support referee, who, on February 16, ordered genetic testing
for Brian, Shirley, and B.M., the results of which excluded
Brian as the biological father of B.M.
On June 12, 2012, Brian filed a form titled “Application
and Affidavit to Obtain Termination of Child Support” and
attached the results of the DNA test. Brian used the Nebraska
pro se form which lists the customary reasons for termination
of child support, i.e., death, emancipation, or marriage of the
child, or the child’s attaining the age of 19 years. When Brian
filed this application to terminate child support, like an adop-
tive father, Brian was not a biological father, but he was the
legal father.
A hearing was held before a child support referee for the
district court on June 25, 2012. At the start of the hearing,
the referee stated that “[t]his matter comes on for hearing on
a Motion to Terminate Child Support.” Brian appeared at the
hearing, and he testified under oath in his own behalf. Brian
did not claim he had not been intimate with Shirley. Instead,
he testified that “sometime around—between ’94 and ’96,” he
“had suspicions that [he] was not the father.” The DNA test
results were received in evidence. The State offered and the
referee received the notarized “Acknowledgement of Paternity”
signed by Brian. Brian testified that he recognized his signature
on the document.
At the close of the June 25, 2012, child support hearing,
without reference to the economic situation of the parties or
the best interests of the child, the referee recommended termi-
nating Brian’s child support obligation, because of the results
of the genetic testing. The referee stated that “you’re not the
dad, so to hold you responsible in the future is unconscionable.
So that’s what I’m going to recommend.” The referee recom-
mended a termination date as of the end of the month in which
the results were reported.
The referee’s written report filed June 28, 2012, stated that
Brian “seeks to terminate his child support obligation based
upon genetic testing that excluded him as the biological father
of the minor herein.” The referee recommended that “the child
support obligation should be terminated with the end of the
month in which the genetic test results were reported” and
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further recommended that the district court “sign an order set-
ting aside the finding of paternity and terminating the child
support obligation herein as of May 31, 2012.” The child sup-
port referee did not base his decision on child support calcula-
tions or base his reasoning on Brian’s financial situation.
On June 28, 2012, the State filed its exceptions to the ref-
eree’s findings. The district court held two hearings on the
State’s exceptions. At no time during the proceedings was a
guardian ad litem appointed to represent the child. The first
hearing was held on August 3, and Brian appeared pro se. At
the August 3 hearing, the State offered and the court received
the record of the hearing before the referee, and the court took
judicial notice of the court file. The State argued that Brian
had signed the notarized “Acknowledgement of Paternity”
in 1995 and that Brian has “held himself out to be the legal
father of this child. [Brian] has never filed anything to attack
or dispute the accuracy of the acknowledgement.” The State
further argued that
the law states that the father can still attack the signed
acknowledgment. And I believe the statute is . . .
§ 43-1409. He can attack the acknowledgment stating
it was signed . . . through duress or fraud . . . . But it’s
my understanding that [Brian] has not appeared today
stating he signed that acknowledgment due to fraud
or duress.
The version of § 43-1409 to which the State referred was
enacted in 1997 and generally provides methods to rescind or
challenge the acknowledgment, but that after the rescission
period, the unchallenged acknowledgment serves as a legal
finding of paternity. The State further argued that because
Brian signed and had the acknowledgment notarized, his
paternity could not be disestablished under Neb. Rev. Stat.
§ 43-1412.01 (Reissue 2008). Section 43-1412.01, to which
the State referred, became operative in 2008 and generally pro-
vides for the statutory disestablishment of paternity based on
genetic testing, with certain exceptions.
The State also raised an argument based on equity. The State
asserted that Brian had “slept on his rights,” because he had
stated at the hearing before the referee that he suspected as
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Cite as 288 Neb. 106
early as 1996 that he was not the biological father of the child,
but he did not take action until now, and that therefore, the
court should not find in Brian’s favor.
At the August 3, 2012, hearing, the district court stated that
it assumed Shirley “knew that she had sex with other people
during this time than [Brian]” and asked the State if it had
“thought about going after the mother for not telling the truth
about this stuff?” There was a discussion regarding the fact that
the State could not realistically seek to collect its expenditures
from another putative father at this late date, because under
Neb. Rev. Stat. §§ 43-512.03 and 43-1411 (Reissue 2008), the
State can attempt to collect only until the child turns 18, and
B.M. would turn 18 that August.
After the August 3, 2012, hearing, the district court filed
an order on August 8. As to Brian’s application regarding
child support, the order stated that “[d]uring the pendency of
this matter, [Brian’s] child support obligation is suspended
as of May 31, 2012. This Court suspends the child support
for good cause shown as [Brian] is not the biological father
of the minor child.” The order, however, was not limited to
child support.
In the August 8, 2012, order, the district court further deter-
mined that the disestablishment statute, § 43-1412.01, was not
applicable to this case, because Brian signed the acknowledg-
ment in 1995 and § 43-1412.01 did not go into effect until
2008. The district court then stated that the acknowledgment
statute, § 43-1409, the rescission or challenge portions of
which became law pursuant to 1997 Neb. Laws, L.B. 752,
was applicable to this case and that Brian could challenge
the acknowledgment by showing fraud, duress, or material
mistake of fact under that statute. The court stated that it had
found material mistake of fact to be implicit in Brian’s appli-
cations to reduce or terminate child support and suggested
that Brian amend his application to allege fraud, duress, or
mistake of fact with specificity. The court gave Brian leave
to amend. The district court scheduled another hearing for
October 22.
The second hearing before the district court was held on
October 22, 2012. Brian stated that he had not filed an
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amended complaint as the district court had suggested in its
August 8 order, and neither Brian nor the State offered any
additional evidence. At the hearing, the State indicated that
“[Brian] has failed to do what [the court] asked in [the August
8] order, which was to amend his pleading to include some
kind of legal defense or to attack the paternity. He has not
alleged fraud or duress at this time.” The State reiterated its
arguments that Brian had not challenged the acknowledgment
under § 43-1409 or sought to disestablish paternity under
§ 43-1412.01 and that Brian had slept on his rights.
After the October 22, 2012, hearing, the district court filed
its second order on October 29. In the order, the district court
stated that no additional evidence was offered at the October
22 hearing and the district court determined that “there is no
further issue in this matter as the Court has already found and
had already agreed with the Referee in this matter.” Therefore,
the district court accepted the referee’s recommendation to
“[set] aside the finding of paternity” and further determined
that Brian “is not the biological father of the minor child
and that his child support obligation is terminated as of May
31, 2012.”
The State appeals.
ASSIGNMENTS OF ERROR
The State claims on appeal that the district court erred
when it (1) “void[ed] the determination of paternity . . .
and terminat[ed] [Brian’s] child support obligation” and (2)
“grant[ed] any relief to [Brian] as [Brian] failed to bring the
question of paternity in a timely manner.”
STANDARDS OF REVIEW
[1,2] Modification of child support payments is entrusted
to the trial court’s discretion, and although, on appeal, the
issue is reviewed de novo on the record, we will affirm the
trial court’s decision absent an abuse of discretion. Freeman
v. Groskopf, 286 Neb. 713, 838 N.W.2d 300 (2013). A judicial
abuse of discretion exists when the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted
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STATE ON BEHALF OF B.M. v. BRIAN F. 113
Cite as 288 Neb. 106
for disposition. Fitzgerald v. Fitzgerald, 286 Neb. 96, 835
N.W.2d 44 (2013).
ANALYSIS
Brian brought this action to modify or terminate his child
support obligation. Nevertheless, in addition to terminating
child support, the district court on its own initiative converted
this action for the modification or termination of child sup-
port into an action challenging the “Acknowledgement of
Paternity” and, further, adopted the child support referee’s
recommendation to “[set] aside the finding of paternity.”
We determine that the district court improperly expanded
the scope of this action when it converted the matter into an
action to disestablish paternity. And, because Brian was still
legally the father under the paternity decree, the district court
further erred when it terminated child support based solely
on the finding that Brian was not the biological father of the
child. We reverse the October 29, 2012, order and remand
the cause for further proceedings limited to modification of
child support.
Brian, as the Legal Father, Applied to Modify Child
Support. The Application to Modify Was Subject
to Established Modification Principles.
The child at issue in this case, B.M., was born in August
1994. In January 1995, Brian signed a notarized acknowl-
edgment, and in July 1996, a decree was filed which found
that Brian is the legal father of B.M. Section 43-1409, as
it existed when Brian signed the acknowledgment, provided
that the “signing of a notarized acknowledgment . . . by the
alleged father shall create a rebuttable presumption of pater-
nity as against the alleged father. Such a signed and notarized
acknowledgment or a certified copy or certified reproduction
thereof shall be admissible in evidence in any proceeding to
establish support.” § 43-1409 (Cum. Supp. 1996). This version
of § 43-1409 creates an evidentiary rebuttable presumption
of paternity and provides that the acknowledgment is admis-
sible evidence. Compare Cesar C. v. Alicia L., 281 Neb. 979,
985, 800 N.W.2d 249, 254 (2011) (stating as to later version
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of § 43-1409 that “the proper legal effect of a signed, unchal-
lenged acknowledgment of paternity is a finding that the indi-
vidual who signed as the father is in fact the legal father”).
Accordingly, given the unchallenged acknowledgment and the
decree, since 1996, there has been a finding of paternity as well
as a judgment of paternity, the latter of which established Brian
as the legal father.
In the present action, Brian filed applications to modify or
terminate his child support obligation starting in November
2011. Brian filed these applications under the same case num-
ber, docket 949, No. 623, under which the initial paternity
decree was entered and previous modifications of child sup-
port have been conducted. The same case number has been
utilized because Brian’s effort to modify or terminate child
support is supplementary to the original proceeding, and not
the commencement of a new action. See State ex rel. Gurnon
v. Harrison, 245 Neb. 295, 512 N.W.2d 386 (1994) (deter-
mining that in filiation proceeding, application to modify
decree for child support is not independent proceeding or
commencement of new action, but, rather, is supplementary
to original proceeding).
[3] Brian’s applications filed herein were limited to modi-
fying or terminating child support; he did not claim that he
wished to challenge the signed, notarized acknowledgment,
disestablish paternity, or vacate or set aside the decree of pater-
nity. Pursuant to Neb. Rev. Stat. § 43-1402 (Reissue 2008),
child support in a paternity action is to be determined in the
same manner as in cases of a child born in lawful wedlock.
Section 43-1402 provides in relevant part:
The father of a child whose paternity is established
either by judicial proceedings or by acknowledgment as
hereinafter provided shall be liable for its support to the
same extent and in the same manner as the father of a
child born in lawful wedlock is liable for its support.
See, also, Henke v. Guerrero, 13 Neb. Ct. App. 337, 692 N.W.2d
762 (2005); Weaver v. Compton, 8 Neb. Ct. App. 961, 605 N.W.2d
478 (2000). The district court should have treated this action
simply as a child support modification case filed by the legal
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father “whose paternity [was] established . . . by judicial pro-
ceedings.” See § 43-1402.
[4-7] We have stated that a party seeking to modify a child
support order must show a material change in circumstances
which (1) occurred subsequent to the entry of the original
decree or previous modification and (2) was not contemplated
when the decree was entered. Freeman v. Groskopf, 286 Neb.
713, 838 N.W.2d 300 (2013); Incontro v. Jacobs, 277 Neb.
275, 761 N.W.2d 551 (2009). We have stated that
[a]mong the factors to be considered in determining
whether a material change of circumstances has occurred
are changes in the financial position of the parent obli-
gated to pay support, the needs of the children for whom
support is paid, good or bad faith motive of the obligated
parent in sustaining a reduction in income, and whether
the change is temporary or permanent. But, the paramount
concern in child support cases, whether in the original
proceeding or subsequent modification, remains the best
interests of the child.
Incontro v. Jacobs, 277 Neb. at 282-83, 761 N.W.2d at 558.
The party seeking the modification has the burden to produce
sufficient proof that a material change of circumstances has
occurred that warrants a modification and that the best inter-
ests of the child are served thereby. Incontro v. Jacobs, supra.
These established principles are applicable to Brian’s applica-
tion to modify or terminate child support.
The District Court Improperly Expanded the
Child Support Modification Proceedings.
Actions to determine parental support and paternity are
statutory and governed by Neb. Rev. Stat. §§ 43-1401 through
43-1418 (Reissue 2008 & Supp. 2013). In its August 8, 2012,
order, the district court discussed its construction of the scope
of this action. It referred to both the disestablishment statute,
§ 43-1412.01, and the acknowledgment statute, § 43-1409.
Section 43-1412.01, operative in 2008, generally provides a
statutory remedy by which to set aside a judgment of paternity,
thus disestablishing the parent-child relationship, including
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where genetic testing excludes the individual as the father.
Section 43-1412.01 provides:
An individual may file a complaint for relief and
the court may set aside a final judgment, court order,
administrative order, obligation to pay child support, or
any other legal determination of paternity if a scientifi-
cally reliable genetic test performed in accordance with
sections 43-1401 to 43-1418 establishes the exclusion
of the individual named as a father in the legal deter-
mination. . . . A court shall not grant relief from deter-
mination of paternity if the individual named as father
(1) completed a notarized acknowledgment of paternity
pursuant to section 43-1408.01, (2) adopted the child,
or (3) knew that the child was conceived through artifi-
cial insemination.
Brian did not seek to utilize this statute, and we believe that
neither disestablishment nor the setting aside of the decree
was at issue in the case. The district court concluded that
based on ex post facto principles, § 43-1412.01 was not
applicable.
After determining that § 43-1412.01 was not applicable to
this case, the district court considered the acknowledgment
statute, § 43-1409, as it has essentially existed since 1997. This
version of § 43-1409 provides in part:
The signing of a notarized acknowledgment, whether
under section 43-1408.01 or otherwise, by the alleged
father shall create a rebuttable presumption of paternity as
against the alleged father. The signed, notarized acknowl-
edgment is subject to the right of any signatory to rescind
the acknowledgment within the earlier of (1) sixty days
or (2) the date of an administrative or judicial proceeding
relating to the child, including a proceeding to establish
a support order in which the signatory is a party. After
the rescission period a signed, notarized acknowledgment
is considered a legal finding which may be challenged
only on the basis of fraud, duress, or material mistake
of fact with the burden of proof upon the challenger,
and the legal responsibilities, including the child support
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obligation, of any signatory arising from the acknowledg-
ment shall not be suspended during the challenge, except
for good cause shown.
Brian did not seek to utilize § 43-1409, and we believe that
rescission of the acknowledgment was not an issue in the case.
Referring to the post-1997 version of § 43-1409, the district
court concluded in its August 8, 2012, order that “[t]he stat-
ute that is applicable is section 43-1409 [as initially enacted
in 1997].” The district court erred when it concluded that
§ 43-1409 applied to this case, and we add, parenthetically,
that had rescission of the acknowledgment been at issue, the
1995 version, not the post-1997 version, of § 43-1409 would
have applied.
In its August 8, 2012, order, the district court used the provi-
sions of the post-1997 version of § 43-1409 as its framework.
Under this version of the statute, a notarized unchallenged
acknowledgment is considered a legal finding of paternity. The
district court reasoned that even though Brian had not attacked
the acknowledgment, because the genetic testing results
excluded Brian as the biological father of B.M., a “material
mistake of fact is implicit in the [child support modification]
allegations of [Brian].” The district court gave Brian leave to
amend and suggested “there may be allegations of fraud and
duress that [Brian] may wish to allege and he may also wish
to allege more specificity with regard to the mistake of fact.”
The addition of these allegations would mirror the post-1997
version of § 43-1409.
Notwithstanding the district court’s suggestion,
Brian did not amend his pleadings and did not challenge
the “Acknowledgement of Paternity” under § 43-1409.
Nevertheless, in its October 29, 2012, order, the district court
stated that it
found that there is no further issue in this matter as the
Court has already [on August 8] found and had already
agreed with the Referee in this matter. As such, the
Referee’s decision [which included the recommendation
that the district court enter an order setting aside the
finding of paternity] is hereby re-affirmed and the Court
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accepts the Referee’s decision and finds that [Brian] is
not the biological father of the minor child and that his
child support obligation is terminated as of May 31, 2012.
Any arrearage that was accrued prior to May 31, 2012 is
still to be paid by [Brian].
The State has appealed from the October 29 order in general
and specifically asserts that by adopting the child support ref-
eree’s recommendation to “[set] aside the finding of paternity,”
the district court improperly voided the determination of pater-
nity. We agree with the State.
Brian’s pleadings indicate that because he believed genetic
testing would show that he was excluded as the biological
father of B.M., his child support obligation should be reduced
or terminated. He also attached financial information to support
a modification based on economic hardship. His applications
made no reference to the acknowledgment, see § 43-1409,
disestablishment as a concept, see § 43-1412.01, or the sug-
gestion that the decree of paternity should be set aside or
vacated. Compare, In re Interest of Kodi L., 287 Neb. 35, 840
N.W.2d 538 (2013) (challenger specifically invoked § 43-1409
in challenge to acknowledgment under § 43-1409); Alisha C. v.
Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012) (ex-husband
invoking § 43-1412.01 could attempt to overcome marital
presumption of paternity in dissolution decree by seeking to
disestablish under § 43-1412.01).
As we noted above, actions to determine paternity and
parental support are governed by §§ 43-1401 through 43-1418.
We have recognized that paternity proceedings are purely statu-
tory and that because the statutes regarding paternity proceed-
ings modify the common law, they must be strictly construed.
See Cross v. Perreten, 257 Neb. 776, 600 N.W.2d 780 (1999).
In Cross, we stated:
This court has long recognized that paternity proceed-
ings “are purely statutory and the courts can try such
issues and make such orders, in them, as the statute con-
templates and none other.” Peters v. Killian, 63 Neb. 57,
58, 87 N.W. 1049, 1050 (1901). At common law, the father
of a child born out of wedlock had no legal obligation to
support the child; that common-law rule was changed by
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legislative action. Carlson v. Bartels, 143 Neb. 680, 10
N.W.2d 671 (1943). Statutes which modify or abrogate
the common law are to be strictly construed. Lackman v.
Rousselle, 257 Neb. 87, 596 N.W.2d 15 (1999). This court
has held that relief in paternity actions is limited to that
provided in the statutes. See, Paltani v. Creel, 169 Neb.
591, 100 N.W.2d 736 (1960); Timmerman v. Timmerman,
163 Neb. 704, 81 N.W.2d 135 (1957).
257 Neb. at 780, 600 N.W.2d at 784.
We recognize that Cross was decided before we adopted
the liberalized rules of notice pleading, so its strength to the
extent it applies to the pleading practice in paternity proceed-
ings is in doubt. We have explained more recently in Mahmood
v. Mahud, 279 Neb. 390, 396, 778 N.W.2d 426, 431 (2010),
how a trial court should consider a party’s request for relief
under liberalized pleading, and stated that “[p]laintiffs are not
required to plead legal theories or cite appropriate statutes
. . . .” In Mahmood, the plaintiff sought a domestic abuse pro-
tection order, but the trial court issued a harassment protection
order. In affirming the order, we recognized that the technical
difference between a domestic abuse protection order and a
harassment protection order was subtle, albeit similar, and that
the thrust of the plaintiff’s petition had nevertheless conveyed
the plaintiff’s claim.
In the present case, the district court, evidently applying
liberal pleading concepts, found that Brian’s modification of
child support applications were implicitly seeking to disestab-
lish his parent-child relationship with B.M. To strengthen its
reading of the applications, the district court suggested that
Brian amend his application by making specific allegations.
Upon Brian’s failure to amend, and without the State’s agree-
ment, the district court nevertheless set aside the finding of
paternity. Compare State on behalf of L.L.B. v. Hill, 268 Neb.
355, 356, 682 N.W.2d 709, 711 (2004) (stating in paternity
case involving child support arrearages that “[t]he State on
behalf of [the child] does not contest the vacation of the pater-
nity determination”). With respect to the practice employed
by the district court, we have stated that a “trial judge may on
occasion hasten the process along by suggesting to one party
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that he or she will favorably entertain a particular pleading.
Nevertheless, that practice is to be discouraged.” Jim’s, Inc.
v. Willman, 247 Neb. 430, 434, 527 N.W.2d 626, 630 (1995),
disapproved on other grounds, Gibilisco v. Gibilisco, 263
Neb. 27, 637 N.W.2d 898 (2002). The concurring opinion in
Jim’s, Inc. states that the practice should be “condemned” and
“prohibited.” 247 Neb. at 435, 527 N.W.2d at 630 (Caporale,
J., concurring).
Unlike the subtle distinctions between a domestic abuse
protection order and a harassment protection order at issue in
Mahmood, there can be no confusion between or equating of
an application to reduce monetary support for a child and an
application to sever the legal relationship between a parent and
child. The remedies are vastly different. To read a disestablish-
ment action into a modification for child support application
takes a lighthearted view of terminating a most important legal
and social relationship. Even under liberal pleading practice,
we cannot endorse the severing of the parent-child relation-
ship simply because a party appears before a fact finder who
sympathetically expands the action. As reflected in our discus-
sion below regarding vacating judgments, we do not think it
is prudent to invite adjudicated fathers who are subject to the
pre-1997 version of § 43-1409, to sever their parent-child rela-
tionship merely by filing any pleading to which the results of
genetic testing are attached.
Disestablishing the parent-child relationship has conse-
quences. Although not brought on as a disestablishment mat-
ter, in the context of termination of parental rights, it has been
stated that
termination of the legal relationship between parent and
child is a grave proceeding. A court order terminating
parental rights renders the parent “a legal stranger to the
child” and severs “all parental rights.” . . . The preserva-
tion of the family, and in particular the parent-child rela-
tionship, is an important goal for not only the parents but
also government itself.
Weaver v. Roanoke Dept. of Human Res., 220 Va. 921, 926,
265 S.E.2d 692, 695 (1980) (citations omitted). See, also,
Roth v. Weston, 259 Conn. 202, 231, 789 A.2d 431, 448
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(2002) (stating that termination of parental rights “is the
complete severance by court order of the legal relationship,
with all its rights and responsibilities, between the child and
his parent”) (emphasis in original). We recognize that the
record in the present case indicates that there is no social
relationship between Brian and B.M. Nevertheless, we have
recognized that a child can be harmed when a father seeks
to set aside paternity. See Alisha C. v. Jeremy C., 283 Neb.
340, 808 N.W.2d 875 (2012). The legal effect of disestablish-
ment can cut off inheritance. See Neb. Rev. Stat. §§ 30-2201
to 30-2902 (Reissue 2008, Cum. Supp. 2012 & Supp. 2013).
And, as this case illustrates, a delay in seeking to disestab-
lish can hinder the State’s support collection process. See
§§ 43-512.03 and 43-1411. Thus, although notice pleading
has liberalized requirements, it is not without limits. See 5
Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1215 at 197 (3d ed. 2004) (recognizing that
even though pleading rules are generally less stringent for
pro se litigants, “there are limits”). See, also, Beaudett v.
City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) (stat-
ing that “[p]rinciples requiring generous construction of pro
se complaints are not . . . without limits” and that while trial
courts are to construe pro se complaints liberally, they are not
required to “conjure up questions never squarely presented to
them”). The district court erred when it expanded the child
support modification proceeding.
Although we believe that the proceeding should have been
limited to ruling on modification of child support, we are
aware that the dissent has concluded that Brian’s applica-
tions should be viewed as constructively amended and liber-
ally construed as a disestablishment case and that the district
court properly addressed and correctly decided such issue.
Relying on § 43-1409 as it existed when Brian signed the
acknowledgment, the dissent reasons that, given the results
of the genetic testing, Brian has “rebutted the presumption of
paternity [in § 43-1409], [and] he had no obligation to con-
tinue paying child support and the State had no right to seek
it.” The dissent adds that the “State may not continue to seek
support from an unmarried father who rebuts a presumption
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of paternity.” Implicit in the dissent’s reasoning is the propo-
sition that when the presumption of paternity in the pre-1997
version of the acknowledgment is rebutted, there is no longer
a legal basis for child support. But the source of the child sup-
port obligation in this case is not the acknowledgment, but,
rather, the decree of paternity and support, and the decree has
not been vacated. We do not believe that rebutting or collater-
ally attacking the facts in an acknowledgment which served
as a basis for the factual finding that Brian was “actually the
father” in the paternity action is tantamount to vacating the
decree containing the judgment that Brian is the legal father
and ordering child support. See § 43-1412(1).
In this case, the district court found that Brian was not the
biological father and set aside a finding of paternity. Under
the dissent’s view, if the court finds the individual is not the
biological father, the judgment of paternity and child sup-
port evaporates. To the contrary, however, a finding that an
individual is not a biological father is not the equivalent of a
finding that an individual is not the legal father. To overcome
the judgment which established Brian as the legal father, Brian
would need to set aside the judgment, which he remains eli-
gible to attempt.
The disestablishment statute, § 43-1412.01, was enacted in
2008, and we make no comment regarding its application or
availability to Brian. In order for Brian to disestablish under
non-§ 43-1412.01 principles, Brian would need to overcome
the “res judicata” effect of the finding that Brian is the legal
father in the judgment of paternity and child support and to
take steps to vacate the judgment of paternity. See Alisha C.
v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012) (stat-
ing that to overcome res judicata effect of presumption of
paternity in dissolution decree, legal father would need to
take steps to vacate decree). Even under liberal pleading prin-
ciples, we cannot—knowing that the State objects to voiding
paternity—agree to read Brian’s applications to modify or
terminate child support as pleadings seeking to vacate the
decree of paternity.
Our case of State on behalf of L.L.B. v. Hill, 268 Neb. 355,
682 N.W.2d 709 (2004), is instructive and consistent with our
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analysis. In Hill, we applied equitable principles and stated
that because of an adjudicated father’s “inexcusable lack of
diligence,” 268 Neb. at 360, 682 N.W.2d at 713, the trial
court’s decision to vacate his child support arrearages should
be reversed. Although the question on appeal was limited to
an issue involving child support arrearages, Hill illustrates
the appropriate procedural approach to be followed in the
instant case.
In Hill, an individual who had been determined to be the
legal father in a paternity decree in 1996 sought to be relieved
of child support obligations in 2002, based on genetic testing
showing he was not the biological father. In Hill, we stated
that “[i]n 2002, DNA tests showed that [the individual] was
not [the child’s] father, and [the individual] moved to vacate
the paternity decree.” 268 Neb. at 356, 682 N.W.2d at 710-11.
Elsewhere in the opinion, we stated that in 2002, the indi-
vidual also “filed a motion to terminate [child support].” Id.
at 357, 682 N.W.2d at 711. In Hill, we stated that “[t]he court
granted the motion and vacated the decree, as well as child
support arrearages. The State on behalf of [the child] does not
contest the vacation of the paternity determination and con-
cedes that [the individual] should not be liable for future child
support.” 268 Neb. at 356, 682 N.W.2d at 711. The foregoing
facts from our 2004 opinion demonstrate that for an individual
determined to be the legal father in 1996—before the 1997
revisions to the acknowledgment statute, § 43-1409, and the
2008 passage of the disestablishment statute, § 43-1412.01—
the recognized method was to file a discrete motion to vacate
the paternity decree. In Hill, a discrete motion to vacate the
decree was filed and granted and the district court and parties
recognized the necessity of deciding the individual’s motion
to set aside the paternity decree before terminating child sup-
port based solely on genetic testing results. The district court
granted the unmarried father’s motion to vacate the paternity
decree, thus eliminating the individual’s status as the legal
father, and then granted his motion to terminate child support
which had been ordered during the time the individual was the
legal father. The procedure was embraced by the district court,
the parties, and this court.
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[8] It has been observed that “finality of judgments is an
important concept in our system of jurisprudence, because
it enables the parties to litigation to know once and for
all their rights and obligations.” Dougherty v. Swift-Eckrich,
Inc., 4 Neb. Ct. App. 653, 658, 547 N.W.2d 522, 525 (1996).
Nevertheless, in civil cases, a court of general jurisdiction has
inherent power to vacate or modify its own judgment during
the term in which it was issued. Fitzgerald v. Fitzgerald, 286
Neb. 96, 835 N.W.2d 44 (2013). The paternity decree was filed
in 1996, so this avenue is not available to Brian. The district
court’s inherent power to vacate the judgment, as extended
by statute, has also expired. See Neb. Rev. Stat. § 25-2001(1)
(Reissue 2008). Another avenue to vacate a paternity judgment
might include § 25-2001(4)(c), providing for relief from fraud
by the successful party or relief due to “newly discovered
material evidence which could neither have been discovered
with reasonable diligence before trial nor have been discovered
with reasonable diligence in time to move for a new trial.” The
standard for showing fraud or newly discovered evidence is
high. Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875
(2012). Another avenue sometimes available is to invoke the
concurrent independent equity jurisdiction of the court which
allows the court to modify its own decree. See, e.g., State on
behalf of L.L.B. v. Hill, 268 Neb. 355, 682 N.W.2d 709 (2004).
In the dissolution of marriage context of Alisha C., we stated
that “[t]here are no published cases in Nebraska where a pater-
nity determination in a dissolution and support decree was set
aside under the court’s independent equity jurisdiction.” 283
Neb. at 347, 808 N.W.2d at 882.
The dissent, perhaps recognizing the necessity to set aside
the decree in order to vacate the legal finding of paternity, con-
cludes that “the obvious remedy, for petitioners like Brian at
least, is § 43-1409, as it existed in 1995.” That statute provided
in its entirety as follows:
The signing of a notarized acknowledgment, whether
under section 43-1408.01 or otherwise, by the alleged
father shall create a rebuttable presumption of paternity
as against the alleged father. Such a signed and nota-
rized acknowledgment or a certified copy or certified
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reproduction thereof shall be admissible in evidence in
any proceeding to establish support.
This statute is merely an evidentiary presumption. See, also,
§ 43-1412(1) (providing for admissibility of acknowledgment
in proceeding to establish paternity). Further, unlike the 1997
and later versions of § 43-1409 which provide a method
to rescind or challenge acknowledgments and state that an
unchallenged acknowledgment “is considered a legal finding”
of paternity, the above-quoted statutory language does not in
and of itself serve to make the acknowledgment a legal find-
ing of paternity. The finding of paternity in the instant case is
found in the decree; the pre-1997 version of § 43-1409 is not
the vehicle to undo the judgment—although it may be help-
ful with respect to evidentiary matters in a proper proceeding
in which the judgment is sought to be set aside. We strictly
construe paternity statutes, and we are not inclined to create
a novel remedy by broadly reading an evidentiary paternity
statute. Section 43-1409 as it existed in 1995 does not create a
remedy to vacate the judgment of paternity. In sum, unlike the
district court and the dissent, we do not read Brian’s applica-
tions to modify or terminate child support as seeking dises-
tablishment nor do we read them as urging the court to vacate
its judgment of paternity for purposes of disestablishing his
parent-child relationship with B.M.
The Only Issue Before the District Court Was
Modification of Child Support. We Discuss
the Relevance of Genetic Testing Results.
Brian was found to be the legal father in the decree entered
on July 18, 1996, and ordered to pay child support. The dis-
sent aptly characterizes Brian’s June 12, 2012, pleading as his
“application to terminate his child support obligation based on
genetic testing.” It is not uncommon for an individual such as
Brian to assert that because DNA testing excludes him as the
biological father of a child, his court-ordered child support
obligation should be reduced or terminated. However, nothing
in our case law, the Nebraska statutes, or the Nebraska Child
Support Guidelines indicates that genetic testing excluding
a legal father as the biological father of a child is sufficient
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evidence standing alone to establish a material change in
circumstances warranting the modification or termination of
child support which has previously been ordered in an existing
paternity and child support judgment.
There is jurisprudence elsewhere regarding the significance
of DNA results in an action to modify child support. The law
has been summarized as follows:
Results of DNA testing showing that the adjudicated
father is not the child’s biological father does not, by
itself, constitute sufficient evidence to establish a mate-
rial and substantial change in circumstances warranting
modification or termination of the [child] support obli-
gation, or that the support modification is in the child’s
best interests.
14 C.J.S. Children Out-of-Wedlock § 126 at 426 (2006). We
agree with the foregoing statement of the law. See, also, In re
J.I.Z., 170 S.W.3d 881 (Tex. App. 2005).
Much like the instant case, in In re J.I.Z., an adjudicated
father moved to modify child support payments after obtaining
DNA test results that excluded him as the child’s biological
father, and the trial court granted his motion and reduced his
child support payments to zero. In reversing the trial court’s
decision, like us, the Texas Court of Appeals reasoned that
the adjudicated father “should not . . . be allowed to avert
his duty of support by filing a motion to decrease his support
payments to zero on the basis of DNA results without first
overturning the parentage judgment or terminating his par-
entage.” Id. at 884. Focusing on the child support issue, the
appellate court determined that the adjudicated father did not
provide evidence to establish a material and substantial change
in circumstances to warrant a modification of child support to
zero. The appellate court stated that it was “not free to adopt
a rule that would allow an adjudicated father to be relieved of
his support obligations simply by coming forward with DNA
evidence post-decree that tends to exclude him as the biologi-
cal father.” Id. at 885. See, also, In re T.S.S., 61 S.W.3d 481
(Tex. App. 2001).
In another modification of child support case, it was
observed:
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Continuation of a support obligation after an adjudicated
father discovers that he is not the child’s biological father
may be “unjust or inappropriate,” and the elimination of
that obligation will be in the best interest of the obligor/
father. Modification of support, however, does not alter
the legal relationship between the parties, and the trial
court must also find that modification is in the child’s
best interest.
Leguillon v. Leguillon, 124 Ohio App. 3d 757, 765, 707 N.E.2d
571, 577 (1998). We agree with the reasoning in the forego-
ing decisions and apply such reasoning to this case. It was an
abuse of discretion to terminate child support based solely on
genetic test results when the child support obligation had its
origins in the unchallenged judgment of paternity.
CONCLUSION
In a decree entered on July 18, 1996, Brian was found to
be the legal father of B.M. and ordered to pay child support.
Brian testified he had suspicions he was not the biological
father in 1996, but he waited until 2011 to satisfy his curiosity.
The passage of time complicates the resolution of this appeal.
Although Brian remains free to do so, no application to vacate
the decree establishing Brian as the legal father has been filed
by Brian, and the validity of this judgment has not been chal-
lenged. No guardian ad litem was appointed to protect the
child’s interests. The district court erred when it terminated the
child support obligation of the legal father, Brian, based solely
on the finding that Brian was not the biological father of B.M.
The district court further erred when, on its own initiative, it
expanded this proceeding for a modification or termination
of child support into a challenge to the “Acknowledgement
of Paternity” under the post-1997 version of § 43-1409 and
treated the matter as a disestablishment case and set aside the
finding of paternity. Although we are not unsympathetic to
Brian’s current status, for the reasons explained in the above
analysis, we reverse the October 29, 2012, order of the district
court in which the court treated this modification of child sup-
port proceeding as a successful challenge to the acknowledg-
ment, adopted the child support referee’s recommendation to
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“[set] aside the finding of paternity,” and terminated Brian’s
child support obligation. The cause is remanded for a deter-
mination of modification of child support consistent with
this opinion.
R eversed and remanded for
further proceedings.
Stephan, J., concurring.
I do not necessarily agree with the majority’s premise that
the district court should have treated this action only as a child
support modification case and, therefore, erred in considering
disestablishment of Brian’s paternity. While I concede it is
difficult to determine from the pleadings the precise remedy
Brian sought to employ, it is clear enough that he challenged
the fact of his paternity based upon the DNA test results. But I
agree that the judgment of the district court must be reversed,
because there is no legal basis in the record before us for vacat-
ing the 1996 judgment which determined that Brian was the
father of the child.
The court is in apparent agreement that the record affords no
basis for vacating the judgment of paternity under Neb. Rev.
Stat. § 25-2001 (Reissue 2008), Neb. Rev. Stat. § 43-1412.01
(Reissue 2008), the post-1997 version of Neb. Rev. Stat.
§ 43-1409 (Reissue 2008), or the equity jurisdiction of the
district court. For the reasons stated in the majority and sepa-
rate concurring opinions, I agree that § 43-1409 as it existed
in 1995 did not provide a remedy but was only an evidentiary
presumption which merged into the judgment of paternity.
When a judgment becomes final, it is simply too late to rebut
an evidentiary presumption upon which it is based. Were that
not so, and if parties were free to challenge a judgment years
after its entry simply by showing that the underlying facts are
different than what the court determined them to be, no judg-
ment would ever be final.
That said, I do not particularly like the result which the
court reaches in this case. It is logical and fair that a man who
can conclusively prove that he is not the biological father of a
child and has never assumed a paternal role in the child’s life
should not be required to pay child support. Were this a case
involving a determination of paternity in the first instance,
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that is the result which the law would compel us to reach.
But here, Brian seeks to disprove paternity after a final judg-
ment declared him to be the father of the child. He can only
prevail by having that judgment vacated so as to disestablish
his paternity, and on the record before us, he has not presented
any legal basis for doing so. In my view, this court should not
bend long-settled law regarding the finality of judgments in
order to reach what I acknowledge would be the better result
in this case.
Heavican, C.J., joins in this concurrence.
Cassel, J., concurring.
I write separately primarily to emphasize my respectful
disagreement with the dissent’s central premise: “Under the
1995 version of the statute,[1] if Brian rebutted the presump-
tion of paternity, he had no obligation to continue paying child
support and the State had no right to seek it.” Contrary to the
dissent’s premise, the presumption was merely an evidentiary
device that merged into the judgment entered on July 18, 1996.
From that point forward, the judgment finally determined the
issue of Brian’s legal status as father. Unless and until the
controlling judgment is properly vacated or modified in an
appropriate proceeding, Brian’s legal status as father contin-
ues unchanged.
Under the statutes as they existed at the time, Brian’s
signed acknowledgment of paternity created an evidentiary
presumption. The statute relied upon by the dissent con-
tains two sentences. The first sentence states, “The signing
of a notarized acknowledgment . . . by the alleged father
shall create a rebuttable presumption of paternity as against
the alleged father.”2 A rebuttable presumption is generally
defined as a presumption that can be overturned upon the
showing of sufficient proof.3 In most instances, a presump-
tion imposes on the party against whom it is directed the
1
Neb. Rev. Stat. § 43-1409 (Cum. Supp. 1996).
2
Id.
3
Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d
167 (2003), disapproved in part on other grounds, Kimminau v. Uribe
Refuse Serv., 270 Neb. 682, 707 N.W.2d 229 (2005).
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130 288 NEBRASKA REPORTS
burden of proving that the nonexistence of the presumed fact
is more probable than its existence.4 The second sentence of
the statute confirms its evidentiary character by making the
acknowledgment “admissible in evidence in any proceeding
to establish support.”5
The statutes then creating the action for determination of
paternity and support fortify the presumption’s evidentiary
status. One statute authorized a “civil proceeding to establish
the paternity of a child.”6 The next statute specified procedures
in such actions.7 The method of trial was to be “the same as
that in other civil proceedings.”8 The alleged father and mother
were declared “competent to testify.”9 In specified instances,
uncorroborated testimony was deemed insufficient to support a
finding or verdict of paternity.10 But most important to the case
before us, the acknowledgment was declared to be “admissible
in evidence in any proceeding to establish paternity without the
need for foundation testimony or other proof of authenticity or
accuracy.”11 This makes it abundantly clear that, at the time,
an acknowledgment in a paternity proceeding functioned as a
piece of evidence.
Brian had his opportunity to rebut the presumption in the
proceedings leading to the entry of the 1996 decree. Brian does
not argue that the district court lacked either subject matter or
personal jurisdiction. The decree recited that Brian failed to
answer or otherwise plead and failed to appear at trial. There
is nothing in the record to dispute that recitation. The proce-
dural statute proclaimed the consequences: “If it is determined
in [the establishment] proceeding that the alleged father is
4
See, Neb. Evid. R. 301, Neb. Rev. Stat. § 27-301 (Reissue 2008); Dawes,
supra note 3.
5
§ 43-1409.
6
Neb. Rev. Stat. § 43-1411 (Cum. Supp. 1994).
7
Neb. Rev. Stat. § 43-1412 (Cum. Supp. 1996).
8
§ 43-1412(1).
9
Id.
10
See id.
11
See id.
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actually the father of the child, a judgment shall be entered
declaring the alleged father to be the father of the child.”12 The
court entered the judgment, i.e., the decree.13 The judgment
declared Brian to be the father. No appeal was taken. Brian
failed to rebut the presumption when he had the opportunity to
do so. The function of the acknowledgment ceased when the
judgment came into existence.
A “judgment” is a court’s final consideration and determina-
tion of the respective rights and obligations of the parties to an
action as those rights and obligations presently exist.14 Upon
the entry of judgment and passage of the appeal time, the evi-
dence supporting the judgment no longer mattered. From that
point forward, the judgment became controlling in establishing
Brian as the child’s legal father.
Over 15 years later, Brian sought modification of support.
At this point, the presumption of the acknowledgment had no
purpose. It had long been replaced by the paternity judgment.
As the judgment approached its 16th anniversary, Brian filed
another pleading, using a standard form for termination of
child support. But this form, no matter how liberally construed,
did not seek vacation or modification of the judgment declar-
ing him to be the father of the child.
Even if the standard form could be read as an attempt to
invoke the remedy enacted in 2008,15 the district court clearly
did not believe that it was proceeding under that section. The
court’s August 8, 2012, order stated that the new statute was
“not applicable to the situation at bar, otherwise it would be
an ex post facto law.” But more important, where an indi-
vidual seeks to implement this remedy, the statute expressly
requires the court to “appoint a guardian ad litem to represent
the interest of the child.”16 During the proceedings leading
12
See id.
13
See Federal Land Bank v. McElhose, 222 Neb. 448, 384 N.W.2d 295
(1986) (judgment of court of equity is called decree).
14
Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428, 811 N.W.2d
178 (2012).
15
See Neb. Rev. Stat. § 43-1412.01 (Reissue 2008).
16
Id.
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132 288 NEBRASKA REPORTS
to this appeal, the court did not appoint a guardian ad litem.
Consequently, the court was not proceeding under this statute,
even if we assume that this remedy would otherwise have
been available.
I now turn to the first of two other aspects of the dissent
meriting attention. The dissent cites several cases17 for the
proposition that “setting aside a paternity decree under a dis-
trict court’s equity jurisdiction is contrary to our cases hold-
ing that equitable relief is not available under the paternity
statutes.” But none of the cited cases involves setting aside
a judgment or decree. Each addresses the relief available in
an action to determine paternity. In one case, a man unsuc-
cessfully attempted to use an equitable action to have himself
declared the father of two children born out of wedlock.18 In a
different case—a divorce action where the nullity of the mar-
riage was decreed—the statute then allowed the court to make
provision for the care, custody, and maintenance of the chil-
dren of the parties and this court affirmed, after noting that the
court would not have had the authority to entertain an inde-
pendent action to determine the paternity of a child born out
of wedlock.19 In the final case, this court held that an action
in equity could not be maintained against the representative of
the estate of a deceased alleged father by children born out of
wedlock to obtain money for their support, maintenance, and
education for the period subsequent to the father’s death.20
None of the cases cited by the dissent hold, or even suggest,
that the ordinary powers and remedies regarding vacating of
a judgment do not apply to a judgment of paternity under
§ 43-1412.
The framework for a district court to vacate or modify
its own judgment is so well known that it hardly requires
17
Paltani v. Creel, 169 Neb. 591, 100 N.W.2d 736 (1960); Timmerman v.
Timmerman, 163 Neb. 704, 81 N.W.2d 135 (1957); Carlson v. Bartels, 143
Neb. 680, 10 N.W.2d 671 (1943).
18
See Paltani, supra note 17.
19
See Timmerman, supra note 17.
20
See Carlson, supra note 17.
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citation. In one of our most recent cases, we reviewed the
court’s authority to do so.21 First, in civil cases, a court of
general jurisdiction has inherent power to vacate or modify
its own judgment at any time during the term in which the
court issued it.22 One subsection of a statute provides for the
exercise of this inherent power after the end of the term upon
a motion filed within 6 months after the entry of judgment.23
Another subsection of the same statute authorizes a district
court to vacate or modify its own judgments or orders, after
term, upon one or more specified grounds.24 Finally, a district
court has the power to vacate or modify a judgment after term
under the court’s independent equity jurisdiction.25 Of course,
equitable remedies are generally not available where there
exists an adequate remedy at law.26 And any litigant who seeks
equity must herself do equity.27
Finally, I address the dissent’s assertion that “if no pro-
cedure existed for challenging a paternity finding, then in
2008, the Legislature had no need to prohibit a court from
granting relief from a determination of paternity if the peti-
tioner had signed an acknowledgment.”28 The dissent errs in
two aspects.
First, the dissent’s premise is incorrect. A procedure did
exist. As I have already expounded, the district court’s juris-
diction to vacate or modify its own judgments is well settled.
But while a procedure existed prior to the 2008 amendment,
the likelihood of successfully challenging a paternity finding
was quite small as a result of two decisions of this court. First,
21
See Carlson v. Allianz Versicherungs-AG, 287 Neb. 628, 844 N.W.2d 264
(2014).
22
Id.
23
See, Neb. Rev. Stat. 25-2001(1) (Reissue 2008); Carlson, supra note 21.
24
See, § 25-2001(4); Carlson, supra note 21.
25
See, Carlson, supra note 21; Roemer v. Maly, 248 Neb. 741, 539 N.W.2d
40 (1995).
26
Carlson, supra note 21.
27
Roemer, supra note 25.
28
See § 43-1412.01.
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134 288 NEBRASKA REPORTS
in DeVaux v. DeVaux,29 we held that a finding of paternity
in a decree dissolving a marriage prevented the parties from
relitigating paternity. Second, in McCarson v. McCarson,30 we
held that an allegation of fraud on the part of the mother at the
time of the decree was sufficient to overcome a demurrer to the
father’s attempt to invoke § 25-2001(4) to modify the decree
adjudicating his paternity. But as we noted in McCarson,31 the
statutory remedy was only available for 2 years after the judg-
ment was rendered or made. Thus, while a statutory remedy
existed, it was very narrow.
Second, the 2008 statute32 was clearly driven by the lim-
ited procedures available to challenge a finding of paternity.
It may be that the Legislature also recognized that a 1997
amendment to § 43-140933 designated a signed and notarized
acknowledgment, after a rescission period, as a “legal find-
ing which may be challenged only on [specified grounds].”
Indeed, we later observed that a judicial proceeding was
not needed to establish a child’s paternity where a properly
signed and notarized acknowledgment legally established the
father’s paternity as to the child specified in the acknowl-
edgment.34 Obviously, our jurisprudence regarding vacating
or modifying judgments would not apply to a “legal finding”
created without a judicial proceeding. The Legislature may
have recognized that because it had created such an extra-
judicial finding, it also needed to create a remedy for set-
ting aside such a determination. The 2008 amendment more
broadly enabled challenges to paternity findings originating
from either judicial proceedings or the 1997 amendment to
§ 43-1409.
29
DeVaux v. DeVaux, 245 Neb. 611, 514 N.W.2d 640 (1994) (superseded by
statute as stated in Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875
(2012)).
30
McCarson v. McCarson, 263 Neb. 534, 641 N.W.2d 62 (2002) (superseded
by statute as stated in Alisha C., supra note 29).
31
Id.
32
§ 43-1412.01.
33
See § 43-1409 (Reissue 1998).
34
Cesar C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (2011).
Nebraska Advance Sheets
STATE ON BEHALF OF B.M. v. BRIAN F. 135
Cite as 288 Neb. 106
Of course, the 1997 amendment did not apply to the case
before us, where the paternity judgment was entered in 1996.
Brian’s legal status as father was established by the 1996
judgment rather than the signed acknowledgment.
While I understand the dissent’s concern about requiring
Brian to pay support for a child that genetic testing appar-
ently establishes was not his biological offspring, the dissent
too lightly dismisses the consequences to the child from a
termination of the legal relationship of parent and child. This
relationship is constitutionally protected.35 Both parents and
their children have cognizable substantive due process rights
to the parent-child relationship.36 The dissent would approve
a procedure that failed to protect the child’s rights. I cannot
do so.
35
See In re Interest of Meridian H., 281 Neb. 465, 798 N.W.2d 96 (2011).
36
Id.
Connolly, J., dissenting.
Brian raised his claim that he was not the minor’s biologi-
cal father. The State acknowledged his claim and litigated the
issue. The referee concluded that Brian had proved he was
not the minor’s father. He recommended that the district court
enter an order to set aside the paternity finding. The district
court agreed that Brian was not the father and terminated his
child support obligation. Yet the majority opinion, through a
series of legal contortions, manages to avoid the issue that the
parties tried.
Neither the State nor the majority dispute the court’s find-
ing that Brian is not the minor’s father. It is true that only a
little more than a year’s child support obligation is at issue.
But the incorrect pleading rules that the majority applies to
reverse the court’s judgment are no small matter. I cannot join
in that opinion.
I do not agree that Brian failed to directly attack the judg-
ment of paternity. His pro se form petition requested a reduc-
tion in the amount of his obligation and genetic testing. We
do not have a transcript of the hearing on his motion for
genetic testing, but after a hearing, a referee granted Brian’s
Nebraska Advance Sheets
136 288 NEBRASKA REPORTS
request, with the costs taxed to Brian. In May 2012, the State
reported to Brian that he was not the minor’s biological father.
Crucially, the majority acknowledges that a month later, on
June 12, 2012, Brian filed a pro se form entitled “Application
and Affidavit to Obtain Termination of Child Support.” But
Brian did not check any box on the form corresponding to the
stated reasons for terminating his support obligation. Instead,
he wrote in “Genetic Testing attached,” which referred to
the State’s May report that he was not the minor’s biologi-
cal father.
The district court’s order characterized Brian’s pleadings
as follows:
On November 17, 2011, [Brian] filed a Petition for
Modification of Child Support. In that Petition, [he]
requested that there be a DNA test on the minor child to
determine whether [he] was the biological father of the
minor child. [He] also requested a reduction in child sup-
port due to his reduction in income.
(Emphasis supplied.) Clearly, the district court viewed Brian’s
pleadings as asserting alternative claims for relief: (1) a
claim for a reduction of the support obligation because of a
change in income and (2) a claim for termination of support
because he was not the minor’s father. Of course, our plead-
ing rules permit a party to raise separate, and even inconsist­
ent, claims.1
Equally important, the State litigated whether Brian’s pater-
nity should be disestablished. At the start of the hearing before
the referee, he stated that he was conducting a hearing on
Brian’s motion to terminate his child support obligation. The
State responded as follows: “Your honor, the State would
object to the Motion to Terminate in what appears to be a
motion to disestablish.” But the State objected to the motion
on the merits, not as beyond the scope of Brian’s pleading or
the court’s authority to address. The State defended against
Brian’s claim and presented evidence on his signed acknowl-
edgment. The referee’s report stated that the matter before it
1
See TFF, Inc. v. SID No. 59, 280 Neb. 767, 790 N.W.2d 427 (2010), citing
Neb. Ct. R. Pldg. § 6-1108(e)(2).
Nebraska Advance Sheets
STATE ON BEHALF OF B.M. v. BRIAN F. 137
Cite as 288 Neb. 106
was Brian’s “‘Application and Affidavit to Obtain Termination
of Support.’”
Moreover, in response to the referee’s report, the State took
“exception to the recommendation of the Referee regarding
the Motion for Termination of Support and Disestablishment
filed by [Brian].” (Emphasis supplied.) The State further liti-
gated Brian’s claim to disestablish his paternity before the
district court.
The State does not claim on appeal that the disestablish-
ment issue is not properly before us. It indisputably knew the
issue that it was litigating. And both the referee and the dis-
trict court reached decisions based on Brian’s June 12, 2012,
pleading—his application to terminate his child support obli-
gation based on genetic testing. Obviously, even if his original
petition were not clear enough to raise his claim to disestab-
lish paternity, the pleadings were constructively amended by
his June 12 pleading and the State’s implied consent to litigate
that issue.2 It is inconsistent with rule 15(b) of the Nebraska
Court Rules of Pleading in Civil Actions3 for an appellate
court to disregard the result of a trial when the parties agreed
to try the issue.4 So the majority opinion’s focus on rules for
a modification of a support obligation is irrelevant. Because
the court concluded that Brian successfully disestablished his
paternity, it had no need to consider whether to modify his
support obligation.
But because the district court mistakenly concluded that the
post-1997 version of § 43-14095 governed Brian’s claim to dis-
establish paternity, it gave Brian an opportunity to amend his
pleadings and both parties an opportunity to present evidence
on the reasons for which § 43-1409 now authorizes a collateral
attack on a finding of paternity: duress, fraud, or material mis-
take of fact.
2
See Blinn v. Beatrice Community Hosp. & Health Ctr., 270 Neb. 809, 815,
708 N.W.2d 235, 243 (2006). See, also, Risor v. Nebraska Boiler, 277
Neb. 679, 765 N.W.2d 170 (2009).
3
See Neb. Ct. R. Pldg. § 6-1115(b).
4
See Blinn, supra note 2.
5
Neb. Rev. Stat. § 43-1409 (Reissue 2008).
Nebraska Advance Sheets
138 288 NEBRASKA REPORTS
That the court ordered an additional hearing is not surpris-
ing. The State was relying on a statute that did not exist in
1995 when Brian signed the acknowledgment of paternity,
and the court did not know exactly what the paternity stat-
utes provided in 1995. Moreover, in its first order, the court
specifically determined that Brian’s application to terminate
his child support obligation had raised the disestablishment
claim and implicitly raised a mistake of fact. So the court’s
additional hearing was not an attempt to improperly expand
the proceeding to include the disestablishment issue. Nor did
the court improperly suggest that it would favorably entertain
Brian’s amended pleading. The State benefited from an oppor-
tunity to present evidence on the issues that the court believed
were relevant.
More important, the majority’s insinuations are simply
beside the point. The court was mistaken in its belief that
duress, fraud, or material mistake of fact was at issue. In 1995,
§ 43-1409 provided the following:
The signing of a notarized acknowledgment, whether
under section 43-1408.01 or otherwise, by the alleged
father shall create a rebuttable presumption of paternity
as against the alleged father. Such a signed and notarized
acknowledgment or a certified copy or certified reproduc-
tion thereof shall be admissible in evidence in any pro-
ceeding to establish support.6
Under the 1995 version of the statute, if Brian rebutted the
presumption of paternity, he had no obligation to continue
paying child support and the State had no right to seek it. It
was not until 1997 that the Legislature amended § 43-1409
to require an unmarried man, who could prove that he was
not a child’s biological or adoptive father, to nonetheless
support that child, unless he could also prove that he signed
an acknowledgment of paternity because of fraud, duress,
or mistake of fact.7 But the limitations of fraud, duress, or
6
See, Neb. Rev. Stat. § 43-1409 (Cumm. Supp. 1996); 1994 Neb. Laws,
L.B. 1224, § 58.
7
See 1997 Neb. Law, L.B. 752, § 101.
Nebraska Advance Sheets
STATE ON BEHALF OF B.M. v. BRIAN F. 139
Cite as 288 Neb. 106
mistake for rebutting the presumption of paternity did not
apply to Brian.
A legislative act operates only prospectively and not ret-
roactively unless the Legislature’s intent and purpose that it
should operate retroactively are clearly disclosed.8 Statutes
affecting substantive matters are not applied retroactively; dis-
putes regarding such rights are governed by the statutes in
effect at the time of the disputed transaction or event.9 The
1997 amendments to the paternity statutes were substantive
and do not apply retroactively to an acknowledgment signed in
1995. So that portion of the court’s order dealing with a mate-
rial mistake of fact is superfluous and immaterial to the issue
before this court. Obviously, if the district court had known
what § 43-1409 required in 1995, it would not have ordered
an additional hearing. Instead, it would have realized that the
only issue was whether Brian had rebutted the presumption of
paternity—which burden he had clearly met.
Having cleared the statutory underbrush, the primary issue,
according to the majority opinion, is whether Brian’s plead-
ings were sufficient to put the State on notice of his claim.
Mahmood v. Mahmud10 governs that issue. There, we explained
that our pleading practices have been liberalized since 2003:
“A party is only required to set forth a short and plain state-
ment of the claim showing that the pleader is entitled to relief.
Plaintiffs are not required to plead legal theories or cite appro-
priate statutes so long as the pleading gives fair notice of the
claims asserted.”11
Mahmood illustrates that under our liberal pleading rules,
we focus on whether the plaintiff’s petition or complaint
8
See, e.g., Smith v. Mark Chrisman Trucking, 285 Neb. 826, 829 N.W.2d
717 (2013); In re Interest of Clifford M. et al., 261 Neb. 862, 626 N.W.2d
549 (2001); Kratochvil v. Motor Club Ins. Assn., 255 Neb. 977, 588
N.W.2d 565 (1999); Proctor v. Minnesota Mut. Fire & Cas., 248 Neb. 289,
534 N.W.2d 326 (1995).
9
See, e.g., Smith, supra note 8; Young v. Dodge Cty. Bd. of Supervisors, 242
Neb. 1, 493 N.W.2d 160 (1992).
10
Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426 (2010).
11
Id. at 396, 778 N.W.2d at 431.
Nebraska Advance Sheets
140 288 NEBRASKA REPORTS
was sufficient to give the defendant notice of the claim to be
defended against. Even if a plaintiff cites the wrong statute or
uses an incorrect form to assert a claim for relief, this error
will not preclude a trial court from considering the claim and
granting relief when the petition or complaint is sufficient to
put the defendant on notice of the plaintiff’s claim.
The application of our pleading rules cannot turn on an
appellate court’s approval or disapproval of the claim pre-
sented. The district court did not, as the majority opin-
ion states, “read a disestablishment action into a modifica-
tion for child support application.” That claim was fairly
presented—as illustrated by the referee’s interpretation, the
State’s interpretation, and the district court’s interpretation of
his pleadings.
It is true that a child born out of wedlock has a statutory
right to receive support from the child’s father.12 But as we
have previously recognized, unmarried men also have sub-
stantial rights at stake in proceedings to impose child support
obligations.13 These considerations do not become irrelevant
if the obligor later claims that he was the victim of pater-
nity fraud.
Moreover, under the common law, the father of a child born
out of wedlock had no duty to support his child.14 We strictly
construe paternity statutes precisely because they are in dero-
gation of the common law.15 As we have stated, “‘A fundamen-
tal fact necessary to sustain an order of child support is pater-
nity by the man judicially obligated to pay such support.’”16
So if the Legislature has determined that an unmarried father
can rebut a presumption of paternity, it is not for this court
12
See Neb. Rev. Stat. § 43-1411 (Reissue 2008).
13
See Carroll v. Moore, 228 Neb. 561, 423 N.W.2d 757 (1988), citing Little
v. Streater, 452 U.S. 1, 101 S. Ct. 2202, 68 L. Ed. 2d 627 (1981).
14
See, Timmerman v. Timmerman, 163 Neb. 704, 81 N.W.2d 135 (1957);
Carlson v. Bartels, 143 Neb. 680, 10 N.W.2d 671 (1943).
15
See, Cross v. Perreten, 257 Neb. 776, 600 N.W.2d 780 (1999); Timmerman,
supra note 14.
16
Cross, supra note 15, 257 Neb. at 781, 600 N.W.2d at 784.
Nebraska Advance Sheets
STATE ON BEHALF OF B.M. v. BRIAN F. 141
Cite as 288 Neb. 106
to sit as a super-legislature and discourage such actions by
imposing stricter pleading requirements than the pleading rules
that apply in any other proceeding.
It is true that in State on behalf of L.L.B. v. Hill,17 the trial
court sustained a motion to vacate a paternity decree that it had
entered several years earlier. But in Hill, we did not address
the court’s authority to grant this equitable relief or to termi-
nate future support obligations. The only issue on appeal was
the court’s vacation of arrearages, and we concluded that the
adjudicated father’s lack of diligence precluded him from seek-
ing that relief.
But setting aside a paternity decree under a district court’s
equity jurisdiction is contrary to our cases holding that equitable
relief is not available under the paternity statutes.18 Moreover,
Nebraska does not have a procedural equivalent of rule 60 of
the Federal Rules of Civil Procedure,19 which permits a court
to grant prospective relief from a judgment because it is no
longer equitable. Finally, if the majority actually believes that
a district court has equity powers to grant prospective relief
from a paternity decree, it should be interpreting the court’s
order as doing just that. But that issue need not be reached
because the obvious remedy, for petitioners like Brian at least,
is § 43-1409, as it existed in 1995.
The majority concedes that the only basis for the paternity
decree is Brian’s acknowledgment and that § 43-1409 provides
a method to rescind or challenge such acknowledgments. In
1995, there was no time limitation for that challenge. But the
majority attempts to evade that problem by concluding that
in 1995, § 43-1409 created merely an evidentiary presump-
tion for a proper proceeding, but not a remedy. The majority
clearly believes that when Brian signed the acknowledgment,
no statutory procedure existed for challenging a finding of
paternity if the acknowledged father initially believed he was
17
State on behalf of L.L.B. v. Hill, 268 Neb. 355, 682 N.W.2d 709 (2004).
18
See, e.g., Paltani v. Creel, 169 Neb. 591, 100 N.W.2d 736 (1960);
Timmerman, supra note 14; Carlson, supra note 14.
19
See Fed. R. Civ. P. 60(b)(5).
Nebraska Advance Sheets
142 288 NEBRASKA REPORTS
the father or could not afford to challenge a paternity peti-
tion. I do not agree that the Legislature intended to permit an
acknowledged father to rebut a presumption of paternity but
nonetheless left him high and dry, without a procedure for
asserting that challenge.
Moreover, if no procedure existed for challenging a pater-
nity finding, then in 2008, the Legislature had no need to
prohibit a court from granting relief from a determination of
paternity if the petitioner had signed an acknowledgment.20
Notably, the 1995 acknowledgment that Brian signed did not
inform him that he would be unable to challenge the acknowl-
edgment even if he later learned that he was not the child’s
biological father. The only constructive notice he had of the
acknowledgment’s consequences was § 43-1409. That statute
would have reasonably led him to conclude that he could
challenge the acknowledgment by rebutting the presumption
of paternity.
One more point, and I am done. I recognized that the State
alternatively argues that Brian should be equitably estopped or
barred by the doctrine of laches from challenging his paternity
because he sat on his rights until the minor, B.M., was nearly
17 years old. But even if equitable relief were available under
the paternity statutes, equity strives to do justice.21 And the
State’s argument ignores the fact that adjudicated fathers are
commonly low income and without the means to prove their
claims if they later learn they are not the biological father.22
This record certainly suggests that Brian lacked the where-
withal to defend his rights.
Although Brian had suspicions that he might not be the
minor’s father, he was living in Minnesota when he was served
with notice of the State’s paternity action and did not appear
for that proceeding or for the subsequent 2009 modification
20
See Neb. Rev. Stat. § 43-1412.01 (Reissue 2008).
21
Floral Lawns Memorial Gardens Assn. v. Becker, 284 Neb. 532, 822
N.W.2d 692 (2012).
22
See, e.g., Tonya L. Brito, Fathers Behind Bars: Rethinking Child Support
Policy Toward Low-Income Noncustodial Fathers and Their Families, 15
J. Gender Race & Just. 617 (2012).
Nebraska Advance Sheets
STATE ON BEHALF OF B.M. v. BRIAN F. 143
Cite as 288 Neb. 106
proceeding. But in 2009, when the minor was removed from
his mother’s home, the payee for Brian’s support payments was
changed to a man whom the mother had stated was the minor’s
biological father. After Brian found out he was not the minor’s
father, he tried to do something about his support obligation.
He stated that he unsuccessfully asked for genetic testing for
years from child support services. He eventually received help
with court filings from legal aid services in Minnesota, which
resulted in the 2012 order for genetic testing, followed by his
disestablishment claim. I do not believe that these facts show
inexcusable neglect.
More important, equitable relief is not available under the
paternity statutes. As explained, these statutes are strictly con-
strued because they are in derogation of the common law. The
parties are limited to the remedies provided by statute, which
do not include claims for equitable relief.23 So under the 1995
version of § 43-1409, the State may not continue to seek
support from an unmarried father who rebuts a presumption
of paternity.
In sum, the majority’s opinion appears to be a triumph of
form over substance. It concludes that Brian’s pro se filings
were insufficient to present a disestablishment claim despite
the State’s interpreting his pleadings as presenting this claim
and defending against it; despite the referee’s specific state-
ment that the matter before him was Brian’s June 2012 plead-
ing; despite the district court’s interpretation of his pleadings
as presenting alternative claims for relief; and, most important,
despite our own pleading rules and case law that require this
court to decide the issues presented by this appeal.
The majority has effectively held that all adjudicated fathers
signing an acknowledgment before 2008 have no procedure
to overcome the “res judicata” effect of the paternity decree
and prove that they are not the acknowledged child’s biologi-
cal father. Under the majority opinion, a man who is not the
child’s father can be coerced to make future support payments
to a man who is the child’s father, even upon a demonstrated
23
See, e.g., Paltani, supra note 18; Timmerman, supra note 14; Carlson,
supra note 14.
Nebraska Advance Sheets
144 288 NEBRASKA REPORTS
falsehood. This result demonstrates that without a remedial
procedure in place, hospital acknowledgments of paternity
easily become a child support system that is unconcerned
with actual paternity.24
McCormack, J., joins in this dissent.
24
See Ronald K. Henry, The Innocent Third Party: Victims of Paternity
Fraud, 40 Fam. L.Q. 51 (2006).
State of Nebraska, appellee, v. Yai Bol, also known as
Daniel D. Matit, appellant.
___ N.W.2d ___
Filed May 16, 2014. No. S-13-317.
1. Constitutional Law: Search and Seizure: Investigative Stops: Arrests:
Probable Cause. The Fourth Amendment guarantees the right to be free of
unreasonable search and seizure. This guarantee requires that an arrest be based
on probable cause and limits investigatory stops to those made upon an articu-
lable suspicion of criminal activity.
2. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress based on a
claimed violation of the Fourth Amendment, an appellate court applies a two-part
standard of review. Regarding historical facts, the appellate court reviews the trial
court’s findings for clear error. But whether those facts trigger or violate Fourth
Amendment protections is a question of law that the appellate court reviews inde-
pendently of the trial court’s determination.
3. Criminal Law: Investigative Stops: Motor Vehicles: Police Officers and
Sheriffs. A traffic stop requires only that the stopping officer have specific and
articulable facts sufficient to give rise to a reasonable suspicion that a person has
committed or is committing a crime.
4. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable
Cause. If an officer has probable cause to stop a traffic violator, the stop is objec-
tively reasonable.
5. Investigative Stops: Police Officers and Sheriffs: Probable Cause. In deter-
mining whether there is reasonable suspicion for an officer to make an investiga-
tory stop, the totality of the circumstances must be taken into account.
6. ____: ____: ____. The factual basis for an investigatory stop need not arise from
the officer’s personal observation, but may be supplied by information acquired
from another person.
7. Investigative Stops: Arrests: Police Officers and Sheriffs: Probable Cause.
Under what is commonly called the collective knowledge doctrine, an officer
who does not have personal knowledge of the facts establishing probable cause