Bryan M. v. Anne B. ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/courts/epub/
02/12/2016 08:24 AM CST
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Nebraska A dvance Sheets
292 Nebraska R eports
BRYAN M. v. ANNE B.
Cite as 292 Neb. 725
Bryan M., appellant, v. A nne B., appellee,
and A dam B., intervenor-appellee.
___ N.W.2d ___
Filed February 12, 2016. No. S-15-075.
1. Estoppel: Equity: Appeal and Error. A claim of equitable estoppel
rests in equity, and in an appeal of an equity action, an appellate court
tries factual questions de novo on the record and reaches a conclusion
independent of the findings of the trial court.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, which an appellate court reviews independently of the lower
court’s determination.
3. Constitutional Law: Statutes: Appeal and Error. The constitutional-
ity of a statute is a question of law which the Nebraska Supreme Court
reviews independently of the lower court’s determination.
4. Paternity: Statutes. An action to establish paternity is statutory in
nature, and the authority for such action must be found in the statute and
must be in accordance with the provisions thereof.
5. Paternity: Guardians and Conservators: Words and Phrases. In the
context of a paternity action, a next friend is one who, in the absence of
a guardian, acts for the benefit of an infant or minor child.
6. Guardians and Conservators. It is generally recognized that a next
friend must have a significant relationship with the real party in interest,
such that the next friend is an appropriate alter ego for the party who is
not able to litigate in his or her own right.
7. Estoppel: Words and Phrases. Equitable estoppel is a bar which
precludes a party from denying or asserting anything to the contrary
of those matters established as the truth by his or her own deeds, acts,
or representations.
8. Estoppel: Fraud: Limitations of Actions. The equitable doctrine of
estoppel in pais may, in a proper case, be applied to prevent a fraudulent
or inequitable resort to a statute of limitations, and a defendant may, by
his or her representations, promises, or conduct, be so estopped where
the other elements of estoppel are present.
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BRYAN M. v. ANNE B.
Cite as 292 Neb. 725
9. ____: ____: ____. Equitable estoppel is not limited to circumstances of
fraud but may also be applied to prevent an inequitable resort to a stat-
ute of limitations where the other elements of estoppel are present.
10. Estoppel: Fraud. The elements of equitable estoppel are, as to the
party estopped: (1) conduct which amounts to a false representation or
concealment of material facts, or at least which is calculated to convey
the impression that the facts are otherwise than, and inconsistent with,
those which the party subsequently attempts to assert; (2) the inten-
tion, or at least the expectation, that such conduct shall be acted upon
by, or influence, the other party or other persons; and (3) knowledge,
actual or constructive, of the real facts. As to the other party, the ele-
ments are: (1) lack of knowledge and of the means of knowledge of
the truth as to the facts in question; (2) reliance, in good faith, upon
the conduct or statements of the party to be estopped; and (3) action or
inaction based thereon of such a character as to change the position or
status of the party claiming the estoppel, to his or her injury, detriment,
or prejudice.
11. Words and Phrases. Constructive knowledge is generally defined as
knowledge that one using reasonable care or diligence should have.
12. Estoppel. Only reasonably justified reliance will create an estoppel.
13. Fraud. An essential element of actionable false representation is justifi-
able reliance on the representation.
14. Constitutional Law: Proof. The burden of demonstrating a constitu-
tional defect rests with the challenger.
15. Equal Protection. The dissimilar treatment of dissimilarly situated per-
sons does not violate equal protection rights.
16. ____. Under principles of equal protection, the government may not
subject men and women to disparate treatment when there is no substan-
tial relation between the disparity and an important state interest.
17. ____. The initial inquiry in an equal protection analysis focuses on
whether the challenger is similarly situated to another group for the
purpose of the challenged governmental action.
18. Standing: Words and Phrases. Standing is the legal or equitable right,
title, or interest in the subject matter of a controversy.
19. Standing: Jurisdiction: Appeal and Error. If the party appealing an
issue lacks standing, the court is without jurisdiction to decide the issues
in the case.
20. Due Process. Due process principles protect individuals from arbitrary
deprivation of life, liberty, or property without due process of law.
21. Due Process: Notice. Due process does not guarantee an individual any
particular form of state procedure; instead, the requirements of due proc­
ess are satisfied if a person has reasonable notice and an opportunity to
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BRYAN M. v. ANNE B.
Cite as 292 Neb. 725
be heard appropriate to the nature of the proceeding and the character of
the rights which might be affected by it.
22. Constitutional Law: Due Process. The determination of whether pro-
cedures afforded an individual comport with constitutional requirements
for procedural due process presents a question of law.
Appeal from the District Court for Cass County: David K.
A rterburn, Judge. Affirmed.
John A. Kinney and Jill M. Mason, of Kinney Law, P.C.,
L.L.O., for appellant.
Adam E. Astley, of Slowiaczek, Albers & Astley, P.C.,
L.L.O., for appellee.
Julie E. Bear, of Reinsch, Slattery, Bear & Minahan, P.C.,
L.L.O., for intervenor-appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
and Stacy, JJ.
Wright, J.
I. NATURE OF CASE
This is an appeal from the dismissal of a paternity action
pursuant to Neb. Rev. Stat. § 43-1411 (Reissue 2008). The
biological father brought a paternity action on behalf of him-
self and as the “next friend” of the minor child. He sought a
declaration of paternity and custody of the child, who was born
8 years before the action was filed. He claimed that the statute
of limitations barring paternity actions after 4 years should be
tolled by the doctrines of fraud and equitable estoppel based
on misrepresentations of the mother that he was not the father.
He asserts that our holding in Doak v. Milbauer, 216 Neb. 331,
343 N.W.2d 751 (1984), permits him to bring the action as the
next friend of the child. And he claims that § 43-1411 is uncon-
stitutional under the Due Process and Equal Protection Clauses
of the state and federal Constitutions.
For the reasons stated below, we affirm the order of the dis-
trict court.
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BRYAN M. v. ANNE B.
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II. SCOPE OF REVIEW
[1-3] A claim of equitable estoppel rests in equity, and in
an appeal of an equity action, an appellate court tries factual
questions de novo on the record and reaches a conclusion
independent of the findings of the trial court. Olsen v. Olsen,
265 Neb. 299, 657 N.W.2d 1 (2003). Statutory interpretation
presents a question of law, which an appellate court reviews
independently of the lower court’s determination. Flores v.
Flores-Guerrero, 290 Neb. 248, 859 N.W.2d. 578 (2015).
The constitutionality of a statute is a question of law which
we review independently of the lower court’s determination.
See Big John’s Billiards v. State, 288 Neb. 938, 852 N.W.2d
727 (2014).
III. FACTS
Appellee, Anne B., and intervenor, Adam B., have been mar-
ried since May 1999. During the first 5 years of their marriage,
Anne and Adam unsuccessfully attempted to conceive a child.
Appellant, Bryan M., has been married to his wife for more
than 25 years, and they have two children.
In the fall of 2003 until spring 2004, Anne and Bryan
engaged in an extramarital affair in which they regularly
engaged in sexual intercourse without contraception. During
the affair, Anne continued to have regular sexual intercourse
with both Bryan and her husband without using contraception.
When Anne became pregnant, she broke off her relationship
with Bryan. Bryan inquired several times whether he was the
father of the child and was told that he was not. After the child,
T.B., was born in 2004, Bryan again asked Anne whether he
was the biological father. Again, he was told that he was not
the father. Since T.B.’s birth in 2004, Adam has raised T.B.
with the belief that he is T.B.’s father. Adam has served as
T.B.’s father for T.B.’s entire life. Since T.B.’s birth, Bryan’s
contact with Anne and T.B. has been limited to occasional,
unplanned meetings.
In 2012, Anne and Bryan resumed their extramarital affair.
When the relationship resumed, Bryan requested a DNA
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BRYAN M. v. ANNE B.
Cite as 292 Neb. 725
test to determine whether he is T.B.’s biological father. A
DNA test performed at an Omaha, Nebraska, medical center
revealed a 99.9-percent chance that Bryan is T.B.’s biologi-
cal father.
Bryan filed his initial complaint on September 17, 2013,
seeking to establish paternity of T.B. and custody. His second
amended complaint, as stated by the district court, asserted
the following:
1. [Bryan] is bringing this action in his own capacity,
and Nebraska’s four-year Statute of Limitations [provided
in § 43-1411] is unconstitutional;
2. [Bryan] is bringing this action in his own capacity,
and the Statute of Limitations should be tolled [based on
fraud/deception]; and
3. [Bryan] is bringing this action both in his individual
capacity and “as someone informally acting in the best
interest of T.B., but not formally his guardian.” The action
is also captioned “Bryan . . . , on behalf of himself and as
‘next friend’ of T.B.[”]
Bryan argued that the 4-year statute of limitations should
be tolled because Anne told him that he was not the biologi-
cal father.
The district court rejected Bryan’s argument and found that
the statute of limitations under § 43-1411 should not be tolled.
The court found that Bryan had not been “deceived or hood-
winked into inactivity” by Anne, but simply failed to exercise
his rights with due diligence. It found that Bryan originally did
not want to be a parent to T.B., because he wanted to preserve
his own marriage, and that he knew or should have known that
it was impossible for Anne to know with certainty that he was
not the father. It also granted Anne’s motion to strike Bryan’s
claims brought as “the next friend” of T.B., because it was not
alleged or shown that T.B. was without a guardian, since T.B.
was currently living with his biological mother.
On Bryan’s and Anne’s renewed motions for partial summary
judgment, the court found that § 43-1411 did not violate the
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Due Process Clauses of the U.S. and Nebraska Constitutions.
The court found that the statute permitted sufficient time for
parents to assert claims and that the government had a suffi-
cient interest in preventing children from being removed from
stable homes after a certain period of time. Moreover, it found
that § 43-1411 did not violate Bryan’s rights under the Equal
Protection Clauses of the U.S. and Nebraska Constitutions. It
rejected Bryan’s arguments that § 43-1411 impermissibly dis-
criminated against men as opposed to women and found that
Bryan lacked the standing to bring the argument that the stat-
ute discriminated against children born out of wedlock. Bryan
timely appealed.
IV. ASSIGNMENTS OF ERROR
Bryan assigns as error the trial court’s finding (1) that Bryan
could not file this action derivatively as T.B.’s next friend,
(2) that Bryan did not meet his burden of proving equitable
estoppel/fraud tolling of the statute of limitations found in
§ 43-1411, (3) that § 43-1411 is constitutional under the Equal
Protection Clauses of the U.S. and Nebraska Constitutions,
and (4) that § 43-1411 is constitutional under the Due Process
Clauses of the U.S. and Nebraska Constitutions.
V. ANALYSIS
This appeal raises statutory, equitable, and constitutional
issues associated with § 43-1411. We consider the statutory
question first.
1. Next Friend A rgument
Bryan claims that § 43-1411 permits him to bring this action
as the “next friend” of T.B. to secure T.B.’s rights. Anne and
Adam claim that Bryan may not bring an action as T.B.’s next
friend, because he has not shown T.B. is without a guardian.
We reject Bryan’s claim.
[4] An action to establish paternity is statutory in nature, and
the authority for such action must be found in the statute and
must be in accordance with the provisions thereof. County of
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Hall ex rel. Wisely v. McDermott, 204 Neb. 589, 284 N.W.2d
287 (1979). See Bohaboj v. Rausch, 272 Neb. 394, 721 N.W.2d
655 (2006). Summarized in pertinent part, § 43-1411 provides
that a paternity action may be instituted by (1) the mother or
the alleged father of a child either during pregnancy or within
4 years after the child’s birth or (2) the guardian or next friend
of such child, or the state, either during pregnancy or within 18
years after the child’s birth.
[5,6] Thus, a parent’s right to initiate paternity actions
under § 43-1411 is barred after 4 years, but actions brought
by a guardian or next friend on behalf of children born out of
wedlock may be brought within 18 years after the child’s birth.
In the context of a paternity action, a next friend is one who,
in the absence of a guardian, acts for the benefit of an infant
or minor child. See In re Adoption of Amea R., 282 Neb. 751,
807 N.W.2d 736 (2011). Actions brought by the next friend of
the child are causes of action that seek to establish the child’s
rights rather than those of the parent. See State on behalf of
Kayla T. v. Risinger, 273 Neb. 694, 731 N.W.2d 892 (2007)
(quoting State on behalf of S.M. v. Oglesby, 244 Neb. 880, 510
N.W.2d 53 (1994)). It is generally recognized that a next friend
must have a significant relationship with the real party in inter-
est, such that the next friend is an appropriate alter ego for the
party who is not able to litigate in his or her own right. In re
Adoption of Amea R., supra.
Bryan brings this action in his own behalf and as T.B.’s next
friend. Since T.B. was in the custody of Anne and Adam, his
biological mother and legal father, Bryan did not show that
T.B. was without a guardian.
This is not the first time we have considered this type of
issue. Zoucha v. Henn, 258 Neb. 611, 604 N.W.2d 828 (2000),
involved an action for grandparent visitation rights wherein
the grandmother of the minor child brought the action as
the child’s next friend. Since the minor child lived with his
mother, we concluded there was no legal basis, reason, or
cause for a “next friend” to institute a paternity action on the
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minor child’s behalf. The mother and father were the natural
guardians of the minor child. We concluded the court correctly
dismissed the paternity action, because the grandmother did
not dispute that the child lived with his mother.
Bryan relies upon Doak v. Milbauer, 216 Neb. 331, 343
N.W.2d 751 (1984). He claims that this court suggested that
parents may use the “next friend” status as a basis for bring-
ing a claim of paternity. In Doak, the mother filed a paternity
action against the putative father in 1981 and requested that he
be declared the father of a child born to her in 1972. The court
dismissed the action. In reviewing the constitutionality of Neb.
Rev. Stat. § 13-111 (Reissue 1977), the predecessor statute to
§ 43-1411, we held:
The clear import of the language of § 13-111 is that the
mother’s cause of action to establish the paternity of her
child in order to recover her damages is barred 4 years
after the child’s birth. There is, however, no such limita-
tion on a cause of action brought on the child’s behalf by
a guardian or next friend to establish paternity and secure
the child’s rights. . . . Accordingly, [the mother’s] equal
protection and due process arguments [in this case] are
misdirected. The dismissal of her petition has no effect
upon her child’s cause of action.
Doak, 216 Neb. at 334-35, 343 N.W.2d at 753.
Bryan misinterprets Doak as an indication that parents may
enforce their rights through the guardian or next friend provi-
sions of § 43-1411. And Doak is clearly distinguishable from
the case at bar. In Doak, we considered whether a mother, who
had physical care of a child, could prosecute a cause of action
as a child’s next friend to assert the child’s rights. The father
sought to prevent that cause of action from proceeding, most
likely to avoid paying child support. We held that although the
mother was barred from bringing an action to assert her own
rights and recover damages after 4 years, she could have pros-
ecuted a cause of action as the child’s next friend, because such
an action would have been to secure the child’s rights and,
therefore, would be permitted under the statute.
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Bryan argues:
While the issue here does not relate to [T.B.’s] right to
child support from his father, [T.B.] should have the right
to an emotional bond with his biological father that is the
same as his right to a relationship with the person that is
married to his mother at the time of his birth.
Brief for appellant at 21. We disagree. This relationship is
not the type contemplated by § 43-1411, nor is it the type of
support with which the State has a reasonable interest. Bryan
does not cite to any case in which a court in a similar context
has interpreted “support” to mean an emotional bond. Taking
Bryan’s argument to its logical conclusion, a “next friend”
under § 43-1411 could bring suit to secure the child’s “right
to an emotional bond” with the child’s biological parent. We
reject this argument.
We conclude that Bryan cannot bring this action as the next
friend of T.B. under § 43-1411. Bryan admits in the opera-
tive pleadings that T.B. is in the care of his biological mother.
Thus, applying our holding in Zoucha v. Henn, 258 Neb. 611,
604 N.W.2d 828 (2000), Bryan may not bring the paternity
action as T.B.’s “next friend.” He has no significant relation-
ship with T.B., and there is no indication that T.B. is without
financial support. Bringing this action as T.B.’s next friend is a
thinly veiled attempt to bypass the 4-year limitations period in
§ 43-1411 for actions brought by parents.
2. Equitable Defenses to
Statute of Limitations
We next consider Bryan’s equitable defenses to the statute
of limitations. At the time this action was brought, T.B. was 8
years of age. Bryan clearly failed to bring his action within the
limitations period pursuant to § 43-1411. He asserts the limita-
tions period was tolled on the grounds of fraud and equitable
estoppel. Bryan argues that Anne, by telling him on several
occasions that he was not T.B.’s biological father, committed
fraud and is equitably estopped to assert the statute of limita-
tions as a defense.
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A claim of equitable estoppel rests in equity, and in review-
ing judgments and orders disposing of claims sounding in
equity, an appellate court tries factual questions de novo on the
record and reaches a conclusion independent of the trial court.
See deNourie & Yost Homes, LLC v. Frost, 289 Neb. 136,
854 N.W.2d 298 (2014). Thus, we review Bryan’s equitable
defenses de novo on the record, subject to the rule that where
credible evidence is in conflict on material issues of fact, the
appellate court considers and may give weight to the fact that
the trial court observed the witnesses and accepted one version
of the facts over another. Id. For the reasons stated below, we
reject Bryan’s arguments in equity.
[7-9] Equitable estoppel is a bar which precludes a party
from denying or asserting anything to the contrary of those
matters established as the truth by his or her own deeds, acts,
or representations. McGill v. Lion Place Condo. Assn., 291
Neb. 70, 864 N.W.2d 642 (2015). The equitable doctrine of
estoppel in pais may, in a proper case, be applied to prevent a
fraudulent or inequitable resort to a statute of limitations, and
a defendant may, by his or her representations, promises, or
conduct, be so estopped where the other elements of estoppel
are present. Manker v. Manker, 263 Neb. 944, 644 N.W.2d 522
(2002). Equitable estoppel is not limited to circumstances of
fraud but may also be applied to prevent an inequitable resort
to a statute of limitations where the other elements of estoppel
are present. Mogensen v. Mogensen, 273 Neb. 208, 729 N.W.2d
44 (2007).
[10] The elements of equitable estoppel are, as to the party
estopped: (1) conduct which amounts to a false representation
or concealment of material facts, or at least which is calculated
to convey the impression that the facts are otherwise than, and
inconsistent with, those which the party subsequently attempts
to assert; (2) the intention, or at least the expectation, that
such conduct shall be acted upon by, or influence, the other
party or other persons; and (3) knowledge, actual or con-
structive, of the real facts. Olsen v. Olsen, 265 Neb. 299, 657
N.W.2d 1 (2003).
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As to the other party, the elements are: (1) lack of knowl-
edge and of the means of knowledge of the truth as to the facts
in question; (2) reliance, in good faith, upon the conduct or
statements of the party to be estopped; and (3) action or inac-
tion based thereon of such a character as to change the position
or status of the party claiming the estoppel, to his or her injury,
detriment, or prejudice. Id.
The district found that Anne made false statements to Bryan,
because she could not have known which man was the father
of T.B. But it determined that Bryan was relieved to be told
he was not the father, because he wished to remain in his
marriage. The court concluded Bryan’s decision to not timely
bring the action was not caused by Anne’s statements, but by
his desire to conceal the affair from his wife. The court found
Bryan could not have reasonably relied on Anne’s statements
that he was not T.B.’s father, because he knew that they had
not used contraceptives during the period in which they regu-
larly engaged in sexual intercourse. The court determined that
Bryan failed to exercise his rights within the required time
period, which demonstrated a lack of reasonable diligence.
We agree.
Our review leads us to conclude that Bryan could not have
reasonably and in good faith relied on Anne’s statements that
he was not T.B.’s father. Bryan had unprotected sexual inter-
course with Anne on numerous occasions around the time she
became pregnant. He knew that Anne had not conceived a
child in the 5 years of marriage prior to the affair. He knew or
should have known that Anne’s statements were not based on
reliable information.
[11,12] We find that Bryan failed to meet his burden to
show that he had no knowledge or the means of knowledge
of the truth as to the facts in question or constructive knowl-
edge of the facts. Constructive knowledge is generally defined
as knowledge that one using reasonable care or diligence
should have. Gaytan v. Wal-Mart, 289 Neb. 49, 853 N.W.2d
181 (2014). Only reasonably justified reliance will create an
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estoppel. Breslow v. City of Ralston, 197 Neb. 346, 249 N.W.2d
205 (1977).
Similarly, we reject Bryan’s testimony that he did not know
about the availability of DNA testing. The availability of
DNA testing to determine paternity is common knowledge and
accessible to the public, and therefore, we reject Bryan’s claim
that he was unaware that DNA testing was available to him at
the time of T.B.’s birth.
[13] For the same reasons, we reject Bryan’s fraud argu-
ment. An essential element of actionable false representation
is justifiable reliance on the representation. InterCall, Inc. v.
Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012). Where
a plaintiff fails to use ordinary prudence in relying on a false
statement, he or she cannot show that such reliance was justi-
fied. See Lucky 7 v. THT Realty, 278 Neb. 997, 775 N.W.2d
671 (2009). Had Bryan used ordinary prudence, he would
have been able to timely discover that he was T.B.’s biologi-
cal father.
In the case at bar, the facts closely resemble those in Jeffrey
B. v. Amy L., 283 Neb. 940, 814 N.W.2d 737 (2012). There, the
mother had been in a sexual relationship with two men around
the time she became pregnant. The biological father moved
away before the child was born, and the second man obtained
a decree of paternity. At the time he left town, the biological
father did not know that the mother was pregnant or that there
was a possibility that he was the father of the child. A decade
later, and years after the mother had lost custody of the child
to the purported father, the biological father attempted to inter-
vene and assert his rights. We held that the biological father
was not entitled to equitable relief, because he did not exercise
reasonable diligence to determine whether he was the minor
child’s father. We stated:
While [the biological father] slept on his rights, [the
purported father] fulfilled the obligations of a father in
justifiable reliance on the 2001 paternity decree. [The
purported father] was judicially determined to be [the
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minor child’s] father, and he developed a parental rela-
tionship with her. He exercised his visitation rights when
[the child] was in [the mother’s] custody, paid child
support, and later took custody of [the child] after she
was removed from [the mother’s] care. [The biologi-
cal father’s] failure to exercise any attempt to discover
whether he was the biological father of [the child] pre-
vents him from obtaining equitable relief.
Id. at 949, 814 N.W.2d at 745.
We find that Bryan did nothing to determine whether he
was the biological father, despite knowing of the substantial
possibility that he was the biological father. Meanwhile, Adam
fulfilled all the obligations of a father to T.B. and established
a parent-child relationship. The trial court found that under
the circumstances, Bryan is not entitled to equitable relief.
We agree.
Bryan was not deceived or hoodwinked into inactivity by
Anne’s actions and statements, thereby preventing him from
bringing this action in a timely manner. Rather than dili-
gently and prudently attempting to establish paternity within
the first 4 years after T.B.’s birth, he did nothing for 8 years.
Consequently, Bryan’s claim that he was defrauded has no
merit, and he has shown no basis to toll the statute of limita-
tions in § 43-1411.
We do not find persuasive Bryan’s claims that this case is
similar to Manker v. Manker, 263 Neb. 944, 644 N.W.2d 522
(2002). Manker involved the husband’s secretly divorcing his
wife after she signed a voluntary appearance and property
settlement agreement. Although he filed the paperwork with
the court and obtained a dissolution of marriage, the husband
told her that he was only considering a divorce and had time
to stop it.
The couple continued to hold each other out as husband
and wife for 14 years following the dissolution. They cohabi-
tated, they listed each other as spouses and left each other the
entirety of their estates in their respective wills, the husband
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listed her as his spouse on health insurance forms, and the
husband acknowledged a child born during the time period as
his son. Because the husband always retrieved the mail, she
never received notice that their marriage had been dissolved.
Furthermore, he handled the couple’s finances. Therefore,
nearly all the “joint property” acquired during the 14 years fol-
lowing the dissolution was titled in the husband’s name. Upon
learning of the dissolution after the husband made suspicious
comments, the wife attempted to separate from him. However,
the husband convinced her to keep the dissolution a secret to
avoid getting into trouble with the Internal Revenue Service
and losing his job.
We held that the doctrine of equitable estoppel was neces-
sary to prevent the husband’s inequitable resort to a statute of
limitations. The husband had repeatedly misrepresented to the
wife and others that they remained married. He repeatedly pre-
vented the wife from learning the truth. Upon her learning the
truth, the husband convinced her to sit on her rights by causing
her to believe that pursuing her rights would cause him to lose
his job and the Internal Revenue Service to seize their assets,
thereby losing any means of support.
In contrast to Manker, in this case, there was not a sys-
tematic pattern of fraud. Bryan understood that there was a
substantial possibility, if not probability, that he was T.B.’s
father. Anne did not know who was the father. At the time of
conception, she had unprotected sexual intercourse with both
men. Bryan is not permitted to bring this paternity action as
T.B.’s next friend, nor do his equitable claims have merit. He
has shown no statutory or equitable basis for a reversal of the
district court’s order.
3. Constitutional Issues
[14] We next turn to Bryan’s constitutional challenges to
§ 43-1411. Bryan challenges § 43-1411 on the basis that it
violates the Equal Protection and Due Process Clauses of
the U.S. and Nebraska Constitutions. Constitutional interpreta-
tion is a question of law on which we are obligated to reach
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a conclusion independent of the decision by the trial court.
Henderson v. City of Columbus, 285 Neb. 482, 827 N.W.2d 486
(2013). The burden of demonstrating a constitutional defect
rests with the challenger. Coffey v. County of Otoe, 274 Neb.
796, 743 N.W.2d 632 (2008). A statute is presumed to be con-
stitutional, and all reasonable doubts are resolved in favor of
its constitutionality. State v. Loyuk, 289 Neb. 967, 857 N.W.2d
833 (2015).
(a) Equal Protection Challenge
Bryan claims that § 43-1411 violates the Equal Protection
Clause because it impermissibly discriminates against natural
fathers and children born out of wedlock.
(i) Gender-Based Classification
We have held that parents are the natural guardians of their
minor children. Zoucha v. Henn, 258 Neb. 611, 604 N.W.2d
828 (2000). Bryan argues that because natural parentage of a
mother is established at birth, but a father’s parentage is not, a
mother can bring paternity actions on behalf of the child for up
to 18 years, whereas fathers have only 4 years.
[15,16] Where a statute is challenged under either the Due
Process Clause or the Equal Protection Clause of the state
and federal Constitutions, the general rule is that legislation
is presumed to be valid, and the burden of establishing the
unconstitutionality of the statute is on the one attacking its
validity. Sherman T. v. Karyn N., 286 Neb. 468, 837 N.W.2d
746 (2013). The dissimilar treatment of dissimilarly situated
persons does not violate equal protection rights. Kenley v.
Neth, 271 Neb. 402, 712 N.W.2d 251 (2006). Under principles
of equal protection, the government may not subject men and
women to disparate treatment when there is no substantial rela-
tion between the disparity and an important state interest. In
re Adoption of Baby Girl H., 262 Neb. 775, 635 N.W.2d 256
(2001), disapproved on other grounds, Carlos H. v. Lindsay
M., 283 Neb. 1004, 815 N.W.2d 168 (2012).
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[17] The initial inquiry in an equal protection analysis
focuses on whether the challenger is similarly situated to
another group for the purpose of the challenged governmental
action. State v. Rung, 278 Neb. 855, 774 N.W.2d 621 (2009).
Absent this threshold showing, one lacks a viable equal protec-
tion claim. Id. For the purposes of argument, we assume that
Bryan has met this requirement.
Once the challenger establishes that he or she is similarly
situated to another group, the analysis then focuses on whether
the challenger is receiving dissimilar treatment pursuant to the
statute at issue as compared to the similarly situated group.
Sherman T. v. Karyn N., supra. On its face, § 43-1411 treats
mothers and putative fathers identically by imposing a 4-year
limitations period on paternity actions brought by parents
asserting their own rights. Similarly, the statute does not dis-
criminate based on gender in allowing a guardian or next friend
to bring an action on behalf of the child.
Our case law shows that § 43-1411 has been invoked to
bar paternity actions brought by both men and women after 4
years. More fundamentally, Bryan’s argument fails to recognize
the distinction between bringing a paternity action to vindicate
the parent’s right as compared to filing an action to vindicate
the rights of the child. See, State on behalf of S.M. v. Oglesby,
244 Neb. 880, 510 N.W.2d 53 (1994); Doak v. Milbauer, 216
Neb. 331, 343 N.W.2d 751 (1984).
It is unclear what Bryan believes are the necessary measures
that would place mothers and fathers “on a level playing field”
in bringing paternity actions. His argument suggests that any
time limitation on a parent’s right to assert his or her right
to bring a paternity action is unconstitutional. That notion is
patently hostile to the rights of the child and the State’s inter-
est in preserving family stability. More fundamentally, it is
contrary to our law regarding paternity actions and support.
Consequently, we reject Bryan’s argument that § 43-1411
impermissibly discriminates against men.
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(ii) Discrimination Against Children
Born out of Wedlock
[18,19] In addition to gender-based classification, Bryan
claims that § 43-1411 impermissibly discriminates against chil-
dren born out of wedlock. But Bryan lacks standing to raise
this issue, because he would be required to do so on behalf of
T.B. Standing is the legal or equitable right, title, or interest
in the subject matter of a controversy. In re Guardianship &
Conservatorship of Barnhart, 290 Neb. 314, 859 N.W.2d 856
(2015). If the party appealing an issue lacks standing, the court
is without jurisdiction to decide the issues in the case. In re
Claims Against Pierce Elevator, 291 Neb. 798, 868 N.W.2d
781 (2015).
As the child born out of wedlock, the right and interest in
challenging § 43-1411 on that basis belongs to T.B. We have
determined that Bryan was not permitted to bring a paternity
action on behalf of T.B. or assert T.B.’s rights. Similarly, we
find he lacks standing to raise this issue. Regardless, we note
that this issue was addressed in our opinion Doak v. Milbauer,
supra (holding that § 13-111 was constitutional because it did
not bar children born out of lawful wedlock from themselves
bringing the action after the specified period of limitations).
(b) Due Process Challenge
Bryan argues that § 43-1411 violates his due process rights.
He asserts that society has changed a great deal in the last 20
years and that the State no longer has an interest in impos-
ing a limitations period on parents bringing paternity actions.
Bryan’s arguments seem to allege that § 43-1411 violates his
procedural due process rights. We reject Bryan’s arguments.
[20-22] Due process principles protect individuals from
arbitrary deprivation of life, liberty, or property without due
process of law. Doe v. Board of Regents, 280 Neb. 492,
788 N.W.2d 264 (2010). Due process does not guarantee an
individual any particular form of state procedure; instead,
the requirements of due process are satisfied if a person has
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reasonable notice and an opportunity to be heard appropriate
to the nature of the proceeding and the character of the rights
which might be affected by it. In re Interest of S.J., 283 Neb.
507, 810 N.W.2d 720 (2012). The determination of whether
procedures afforded an individual comport with constitutional
requirements for procedural due process presents a question of
law. Id.
Bryan bases his argument primarily on the holding in Michael
H. v. Gerald D., 491 U.S. 110, 109 S. Ct. 233, 105 L. Ed. 2d
91 (1989). There, the Court upheld a California statute which
created a presumption that a husband is the natural father of a
child born during a marriage. In Michael H., a putative natural
father, whose blood tests indicated a 98.07 percent probability
of paternity and who had established a parental relationship
with the child, filed an action to establish paternity and a right
to visitation. The Court held: (1) The statute creating a pre-
sumption that a child born to a married woman living with her
husband is the child of the marriage did not violate the putative
natural father’s procedural due process rights, (2) the statute
did not violate the putative natural father’s substantive due
process rights, (3) the child did not have a due process right
to maintain a filial relationship with both the putative natural
father and the husband, and (4) the statute did not violate the
child’s equal protection rights. In reaching its conclusions, the
Court stated:
In Lehr v. Robertson, a case involving a natural
father’s attempt to block his child’s adoption by the
unwed mother’s new husband, we observed that “[t]he
significance of the biological connection is that it offers
the natural father an opportunity that no other male pos-
sesses to develop a relationship with his offspring,” . . .
and we assumed that the Constitution might require some
protection of that opportunity . . . . Where, however, the
child is born into an extant marital family, the natural
father’s unique opportunity conflicts with the similarly
unique opportunity of the husband of the marriage; and
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it is not unconstitutional for the State to give categorical
preference to the latter.
Michael H., 491 U.S. at 128-29. Section 43-1411 is substan-
tially less rigid than the California statute. Section 43-1411
imposes a 4-year limitations period, whereas the California
statute imposed a 2-year limitations period. Moreover, whereas
§ 43-1411 allows putative fathers (such as Bryan) to bring
paternity actions within that time period, the California statute
seemingly barred persons outside the marriage from bringing
such actions.
Bryan claims that in contrast to the California statute in
Michael H., § 43-1411 does not have a provision allowing for
visitation rights for natural fathers if they stood in loco parentis
to the child, which, for a variety of reasons, is often not the
case. Bryan’s reliance upon Michael H. is misplaced. Under
§ 43-1411, the biological parent need not be in loco parentis to
the child to bring a paternity action. Instead, the sole require-
ment is that he or she must bring the action within the time
period provided in that statute.
We conducted a due process analysis in Doak v. Milbauer,
216 Neb. 331, 343 N.W.2d 751 (1984), when the mother chal-
lenged § 13-111—the predecessor statute to § 43-1411—on
equal protection and due process grounds. The mother claimed
the 4-year statute of limitations to bring paternity actions was
unconstitutional. There, we stated:
More recently, the U.S. Supreme Court has held that
restrictions on support suits by children born out of law-
ful wedlock will survive equal protection scrutiny to the
extent that they are substantially related to a legitimate
state interest. However, the period for obtaining parental
support must be long enough to provide a reasonable
opportunity for those with an interest in such children
to bring suit on their behalves. Further, any time limit
on that opportunity has to be substantially related to the
state’s interest in preventing the litigation of stale or
fraudulent claims. . . .
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There is, however, a major distinction between the stat-
utes determined to be constitutionally infirm in the above-
cited cases and the statute at hand. Those statutes found
not to pass constitutional muster purported to bar children
born out of lawful wedlock from themselves bringing the
action after the specified period of limitations. We do not
so read our statute.
Doak, 216 Neb. at 333-34, 343 N.W.2d at 752-53 (citing
Mills v. Habluetzel, 456 U.S. 91, 102 S. Ct. 1549, 71 L. Ed.
2d 770 (1982)). We concluded that the statute was constitu-
tional because it provided sufficient time for a natural parent,
whether having custody of the child or not, to assert his or her
rights. We conclude that § 43-1411 does not violate Bryan’s
due proc­ess rights.
We also reject Bryan’s claims that “[o]ur society has changed
such that protecting the ‘legitimacy’ of a child born during a
marriage between a man and a woman is no longer a meaning-
ful goal of the state.” Brief for appellant at 30. This mischar-
acterizes the State’s interest involved in § 43-1411. Even if
protecting legitimacy is no longer important, a conclusion we
need not and do not reach, the State certainly has a legitimate
interest in protecting children from being removed from their
homes and stability after an extended period has passed. See
Jeffrey B. v. Amy L., 283 Neb. 940, 814 N.W.2d 737 (2012).
The blame in failing to timely bring a paternity action rests
solely on Bryan.
VI. CONCLUSION
For the reasons stated above, we affirm the order of the dis-
trict court.
A ffirmed.
McCormack, J., not participating.