Evan S. v. Laura H. , 31 Neb. Ct. App. 750 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/18/2023 12:05 AM CDT
- 750 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
EVAN S. V. LAURA H.
Cite as 31 Neb. App. 750Evan S., appellant, v.
Laura H., appellee.
___ N.W.2d ___
Filed April 11, 2023. No. A-22-230.
1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court
reviews a district court’s order granting a motion to dismiss de novo,
accepting the allegations in the complaint as true and drawing all rea-
sonable inferences in favor of the nonmoving party.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law. On a question of law, an appellate court is obligated to
reach a conclusion independent of the determination reached by the
court below.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, an appellate court must determine whether it
has jurisdiction.
4. Limitations of Actions: Jurisdiction. The failure to comply with a
statute of limitations is not an issue of subject matter jurisdiction.
5. Jurisdiction: Paternity. District courts have subject matter jurisdiction
of actions to determine paternity of a child.
6. Limitations of Actions: Pleadings. A challenge that a pleading is
barred by the statute of limitations is a challenge that the pleading fails
to allege sufficient facts to constitute a claim upon which relief can
be granted.
7. Paternity: Statutes. Paternity proceedings are purely statutory, and
because such statutes modify the common law, they must be strictly
construed.
8. Statutes. Statutory language is to be given its plain and ordinary
meaning.
9. Presumptions: Proof: Words and Phrases. A presumption is the
evidentiary assumption of one fact (the presumed fact) based upon
proof of other facts (the predicate facts). The presumed fact is taken
- 751 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
EVAN S. V. LAURA H.
Cite as 31 Neb. App. 750as true unless the opponent of the presumed fact meets a particular bur-
den of proof.
10. Statutes: Legislature: Presumptions: Intent. In enacting a statute,
the Legislature must be presumed to have knowledge of all previous
legislation upon the subject. The Legislature is also presumed to know
the language used in its statutes, and if a subsequent act on the same or
similar subject uses different terms in the same connection, the court
must presume that a change in the law was intended.
11. Paternity: DNA Testing: Presumptions. While a genetic test result
may be evidence of paternity and can establish a rebuttable presump-
tion of paternity, it is not in itself a legal determination of paternity in
the same way as a signed and notarized acknowledgment of paternity
may be.
12. Constitutional Law: Paternity: Time. Neb. Rev. Stat. § 43-1411 (Cum.
Supp. 2022) is constitutional because it provides sufficient time for a
natural parent, whether having custody of the child or not, to assert his
or her rights.
Appeal from the District Court for Lancaster County: Lori
A. Maret, Judge. Affirmed.
Nicholas R. Glasz for appellant.
Laura A. Lowe, P.C., for appellee.
Moore, Riedmann, and Bishop, Judges.
Bishop, Judge.
I. INTRODUCTION
Evan S. filed a complaint in October 2021 against Laura H.
for “Paternity[,] Custody, Visitation and Support” of a minor
child who was born in May 2017. The complaint was filed
approximately 5 months past the 4-year statute of limitations
to establish paternity set forth in Neb. Rev. Stat. § 43-1411(Cum. Supp. 2022). The Lancaster County District Court dis-
missed the case for “lack of subject matter jurisdiction” with-
out any further explanation. On appeal, Evan contends the
district court erred in dismissing the case, because genetic
testing done within weeks of the child’s birth established his
paternity, thus making the statute of limitations inapplicable.
- 752 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
EVAN S. V. LAURA H.
Cite as 31 Neb. App. 750He also argues that § 43-1411 violates the Nebraska and U.S.
Constitutions. Although we disagree with the district court’s
stated basis for dismissal, we nevertheless affirm the court’s
dismissal of the action.
II. BACKGROUND
In Evan’s complaint against Laura, brought pursuant
§ 43-1411, he alleged that the parties were never married
but that N.H. “was born to the relationship between [Evan]
and [Laura]” in May 2017. Evan claimed that paternity of
N.H. had been established because he “previously submit-
ted to [a] genetic test” and the results “established him to be
the biological father” of N.H. Evan attached as an exhibit to
his complaint a notarized “DNA Test Report” dated May 30,
2017, which indicates that there is a “99.99999998% prob-
ability” that Evan is N.H.’s biological father. Evan requested
that the district court determine paternity of N.H., award the
parties joint legal and physical custody, order a parenting plan,
determine child-related financial responsibilities, and order
child support.
On November 10, 2021, Laura filed a “Special Appearance
of Counsel” and a motion to dismiss Evan’s complaint for not
being filed within the 4-year statute of limitations set forth
in § 43-1411.
On November 16, 2021, the district court held a hearing
on Laura’s motion to dismiss. Laura and Evan each appeared
with counsel. Laura entered into evidence a sworn affidavit
wherein she detailed her history with Evan. She stated that at
the time of N.H.’s birth, Laura was legally separated from her
husband, but not yet divorced; she and Evan “dated off and
on for about a year,” and while they were living together, she
became pregnant. Because she was still legally married when
N.H. was born, action was taken to have an order entered
in Lancaster County District Court, case No. CI 17-2784, to
exclude Laura’s husband as N.H.’s father. The genetic test
referenced above showing the 99.99-percent probability that
- 753 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
EVAN S. V. LAURA H.
Cite as 31 Neb. App. 750Evan was the father was submitted to the court at that time to
support the order entered in August 2017 excluding Laura’s
husband as N.H.’s father.
Laura claimed Evan moved out when she was 6 months
pregnant, after which he moved to Colorado. Evan returned to
Nebraska “about 2 weeks after [N.H.] was born,” stayed for
“a week or two,” and then returned to Colorado. According to
Laura, Evan saw N.H. only “periodically” for 4 years when he
was living in Colorado, and then in August 2021, he “moved
back wanting to be a dad to [N.H.]” Evan was present on
N.H.’s first birthday, would visit two to three times a year, and
would stay with Laura. Laura also traveled to Colorado “occa-
sionally.” Laura permitted Evan to take N.H. “on a hiking/
backpacking trip in Colorado during the summer of 2020,” but
this was the only time Evan had N.H. “for more than a day or
2 overnight.” Laura stated that Evan “did provide some money
to help with [N.H.], but [that] it was never consistent.”
Laura further averred that “Child Support Enforcement filed
2 different cases against” Evan in Lancaster County District
Court, one in August 2017 and one in April 2018, seeking
to establish paternity and establish child support. However,
according to Laura, both cases were dismissed for lack of serv­
ice. Attempts at service had been made in Colorado, as well
as at Evan’s parents’ house in Nebraska; Evan’s parents either
could not or would not provide a Colorado address to assist
in effecting service. Laura contended, “Evan knew that I was
trying to get child support established and every time I got his
address, he would move before he was served.”
In August 2021, Evan moved back to Lincoln, Nebraska, and
stayed with Laura “for about 2 weeks.” Evan helped “watch
the kids” while Laura was working in Omaha, Nebraska.
According to Laura, Evan “wanted to make that a permanent
arrangement,” and when she told him “no,” Evan “became
very nasty, calling [her] names and berating [her] in front
of the children.” Laura described other instances in which
Evan engaged in inappropriate and violent behavior, as well
- 754 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
EVAN S. V. LAURA H.
Cite as 31 Neb. App. 750as described an example of her own poor judgment in driving
while intoxicated with “the kids . . . in the car.”
Evan introduced, and the court received, the “DNA Test
Report” that was attached to his complaint. In arguing her
motion, Laura again pointed out that the 4-year limitations
period had expired by the time Evan filed his complaint.
In response, Evan claimed that the statute of limitations
for paternity actions did not apply because he “already had
paternity established.” The court requested that the parties
brief the motion and stated that it would take the matter
under advisement.
On March 4, 2022, the district court entered an “Order to
Dismiss,” stating the following:
On November 16, 2021, the above matter came on for
hearing on [Laura’s] Motion to Dismiss. . . . Exhibits
were offered and received. Arguments were heard, and
the parties were given time to brief the motion. After
receipt of briefs, the court considered all of the evidence,
arguments and briefs, and now finds that the case should
be and hereby is dismissed for lack of subject mat-
ter jurisdiction.
Evan appeals.
III. ASSIGNMENTS OF ERROR
Evan assigns, consolidated and restated, that the district
court erred in (1) dismissing his complaint for lack of sub-
ject matter jurisdiction and (2) applying the 4-year statute of
limitations set forth in § 43-1411 when paternity had already
been established by the “DNA test,” which he claims “cre-
ates the same or greater presumption of paternity as a nota-
rized acknowledgment of paternity.” Evan also contends that
§ 43-1411 violates the Nebraska and U.S. Constitutions.
IV. STANDARD OF REVIEW
[1] An appellate court reviews a district court’s order grant-
ing a motion to dismiss de novo, accepting the allegations
- 755 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
EVAN S. V. LAURA H.
Cite as 31 Neb. App. 750in the complaint as true and drawing all reasonable inferences
in favor of the nonmoving party. Chaney v. Evnen, 307 Neb.
512, 949 N.W.2d 761 (2020).
[2] Statutory interpretation presents a question of law. See,
State ex rel. Wagner v. Gilbane Bldg. Co., 280 Neb. 223,
786 N.W.2d 330 (2010); State v. Decker, 261 Neb. 382, 622
N.W.2d 903 (2001). On a question of law, an appellate court is
obligated to reach a conclusion independent of the determina-
tion reached by the court below. Ruzicka v. Ruzicka, 262 Neb.
824, 635 N.W.2d 528 (2001).
V. ANALYSIS
1. Jurisdiction
[3] Before reaching the legal issues presented for review,
an appellate court must determine whether it has jurisdiction.
Benjamin M. v. Jeri S., 307 Neb. 733, 950 N.W.2d 381 (2020).
In its March 4, 2022, order, the district court granted Laura’s
“Motion to Dismiss,” citing a lack of subject matter jurisdic-
tion. The court provided no further explanation, so we can only
conclude that its decision was based upon a finding that the
4-year statute of limitations barred Evan’s claim. That was the
issue raised in Laura’s motion to dismiss, and it was the focus
of discussion during the hearing on that motion.
[4-6] However, dismissal for lack of subject matter juris-
diction was not a proper basis for dismissal in this case; the
appropriate ground for dismissal would have been failure to
state a claim upon which relief can be granted. The Nebraska
Supreme Court has made it clear that the “failure to comply
with a statute of limitations is not an issue of subject matter
jurisdiction.” Benjamin M., 307 Neb. at 739, 950 N.W.2d at
387. “We have consistently held that the district court has
subject matter jurisdiction of an action to determine paternity
of a child.” Id. at 738, 950 N.W.2d at 386. A challenge that
a pleading is barred by the statute of limitations is a chal-
lenge that the pleading fails to allege sufficient facts to con-
stitute a claim upon which relief can be granted. Benjamin
- 756 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
EVAN S. V. LAURA H.
Cite as 31 Neb. App. 750M., supra. However, in Benjamin M., because neither party
raised the issue of subject matter jurisdiction on appeal, the
Supreme Court proceeded with its analysis as if the district
court had dismissed the case on the ground of failure to state
a claim upon which relief could be granted. We will do the
same here.
However, for the sake of completeness, we note Evan did
assign as error that the district court erred in dismissing his
case “for lack of subject matter jurisdiction,” but he did not
provide any argument specific to that issue, other than to argue
that the court had “jurisdiction pursuant to Neb. Rev. Stat.
§ 43-1238 as Nebraska is the home state of the child on the
date of the commencement of the proceeding.” Brief for appel-
lant at 7. However, as pointed out by Laura in her brief, Neb.
Rev. Stat. § 43-1238 (Cum. Supp. 2022) of Nebraska’s Uniform
Child Custody Jurisdiction and Enforcement Act relates to a
court’s jurisdiction over initial child custody matters and is
not applicable to whether the 4-year statute of limitations con-
tained in § 43-1411 bars Evan’s action to establish paternity.
And although the district court mistakenly referenced a lack
of subject matter jurisdiction, it is evident from the arguments
made before the district court and in arguments on appeal that
the dismissal of Evan’s complaint turned on whether it was
barred by the 4-year statute of limitations. Accordingly, we
will proceed to address those arguments.
2. Statute of Limitations for
Paternity Actions
Actions to determine paternity are governed by Neb. Rev.
Stat. §§ 43-1401 to 43-1418 (Reissue 2016 & Cum. Supp.
2022). The statute of limitations for establishing paternity
by judicial determination is provided in § 43-1411. Since the
time Evan filed his complaint in October 2021, § 43-1411 was
reformatted and what was subsection (2) became subsection
(3). Because no substantive amendment was made, we cite to
the statute in its current version, which states in relevant part:
- 757 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
EVAN S. V. LAURA H.
Cite as 31 Neb. App. 750(1) A civil proceeding to establish the paternity of a
child may be instituted, in the court of the district where
the child is domiciled or found or, for cases under the
Uniform Interstate Family Support Act, where the alleged
father is domiciled, by:
(a) The mother or the alleged father of such child,
either during pregnancy or within four years after the
child’s birth, unless:
(i) A valid consent or relinquishment has been made
pursuant to sections 43-104.08 to 43-104.24 or section
43-105 for purposes of adoption; or
(ii) A county court or separate juvenile court has juris-
diction over the custody of the child or jurisdiction over
an adoption matter with respect to such child pursuant to
sections 43-101 to 43-116[.]
Section 43-1411(3) provides that when a juvenile court already
has jurisdiction over a child, “a person claiming to be the
biological father of a child . . . may file a complaint to inter-
vene in such juvenile proceeding to institute an action to
establish the paternity of the child.” No statute of limitations
appears to be associated with that latter provision. However,
since there is no juvenile court alleged to have jurisdiction in
a proceeding involving N.H., § 43-1411(3) is not applicable
here. Accordingly, we consider only whether the 4-year stat-
ute of limitations set forth in § 43-1411(1)(a) applies. Evan
argues that the 4-year statute of limitations should not apply
to his case, because paternity had already been established
by the “DNA test,” which he claims “creates the same or
greater presumption of paternity as a notarized acknowledg-
ment of paternity.”
(a) Presumptions of Paternity
Evan cites to Benjamin M. v. Jeri S., 307 Neb. 733, 950
N.W.2d 381 (2020), in support of his position that paternity
had already been established by the genetic testing done in
2017, just weeks after N.H. was born, and that therefore,
- 758 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
EVAN S. V. LAURA H.
Cite as 31 Neb. App. 750the 4-year statute of limitations to establish paternity should
be inapplicable.
However, Benjamin M., supra, did not involve someone
simply submitting to genetic testing; rather, in that case, the
father had executed a notarized acknowledgment of paternity
for both of his children within a day or two after they were
born. More than 4 years later, he filed a complaint seeking to
establish paternity, child custody, child support, and parenting
time. The district court dismissed the case because the action
was filed after the 4-year limitations period to establish pater-
nity had expired. The Nebraska Supreme Court determined
that the district court erroneously dismissed the case, because
the notarized acknowledgments of paternity constituted legal
determinations of the appellant’s paternity. Thus, the only
issues that remained were child custody, child support, and
parenting time.
In reaching its conclusion in Benjamin M., supra, the
Supreme Court looked to the language of the paternity stat-
utes, including § 43-1409, which explicitly states that after the
expiration of a 60-day rescission period, “a signed, notarized
acknowledgment is considered a legal finding which may be
challenged only on the basis of fraud, duress, or material mis-
take of fact with the burden of proof upon the challenger.” The
Supreme Court held that “an unrescinded and unchallenged
acknowledgment of paternity operates as a legal finding of
paternity and that the proper legal effect of a signed, notarized
acknowledgment is a finding that the individual who signed as
the father is in fact the legal father.” Benjamin M., 307 Neb.
at 740, 950 N.W.2d at 387-88. Pointing out that it had previ-
ously found that the “establishment of paternity by acknowl-
edgment is the equivalent to the establishment of paternity
by judicial proceeding,” it therefore concluded that based on
the acknowledgments of paternity in that case, the father’s
complaint to establish paternity should have been treated as a
complaint to determine custody and support. Id. at 741, 950
N.W.2d at 388. When paternity has been established by the
- 759 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
EVAN S. V. LAURA H.
Cite as 31 Neb. App. 750“execution of unrescinded and unchallenged acknowledgments
of paternity,” paternity is “no longer an issue,” id. at 743, 950
N.W.2d at 389, and the “court should treat the action as an
action solely to determine custody and support,” id. at 744, 950
N.W.2d at 390. The Supreme Court specifically found that the
4-year statute of limitations in § 43-1411 did not bar an action
for child custody and child support for a father who executed
an acknowledgment of paternity.
Evan seeks the same outcome here, arguing that a “DNA
test creates the same or greater presumption of paternity as a
notarized acknowledgment of paternity” and “genetic testing is
the . . . most advanced and accurate technology to determine
parentage.” Brief for appellant at 6-7. As such, he claims the
“DNA Test Report” finding a 99.99-percent probability that he
is the biological father of N.H. constituted a legal determina-
tion of his paternity. Thus, after quoting from Benjamin M.,
supra, Evan asks this court to apply that precedent here, and
“treat his action as an action to determine custody, visitation
and support.” Brief for appellant at 6.
[7,8] While there is a persuasive logic to Evan’s argu-
ment that if an acknowledgment of paternity qualifies as a
legal determination of paternity, then a genetic test show-
ing a 99.99-percent probability of paternity should similarly
qualify, we must nevertheless constrain ourselves to the plain
language of the paternity statutes. See State on behalf of
Miah S. v. Ian K., 306 Neb. 372, 945 N.W.2d 178 (2020)
(paternity proceedings are purely statutory, and because such
statutes modify common law, they must be strictly construed;
statutory language is to be given its plain and ordinary mean-
ing). And while there are similarities between the statutes
addressing acknowledgments of paternity and genetic testing,
there is also one significant distinction. We will start with
the similarities.
[9] Evan is correct that when the results of a genetic
test “show a probability of paternity of ninety-nine per-
cent or more, there shall exist a rebuttable presumption of
- 760 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
EVAN S. V. LAURA H.
Cite as 31 Neb. App. 750paternity.” § 43-1415(2). Likewise, a signed and notarized
acknowledgment of paternity “shall create a rebuttable pre-
sumption of paternity as against the alleged father.” § 43-1409.
Accordingly, a statutory basis exists for a rebuttable pre-
sumption of paternity under either of these two alternatives.
However, a rebuttable presumption by itself does not automat-
ically result in a legal determination of paternity. “Broadly,
a presumption (sometimes called a rebuttable presumption)
is the evidentiary assumption of one fact (the presumed fact)
based upon proof of other facts (the predicate facts).” Hopkins
v. Hopkins, 294 Neb. 417, 428, 883 N.W.2d 363, 373 (2016).
As applicable here, there is a presumed fact of paternity
based upon proof of a genetic test showing a 99-percent
probability of paternity or a signed and notarized acknowl-
edgment of paternity. “The presumed fact is taken as true
unless the opponent of the presumed fact meets a particular
burden of proof.” Id. “In all cases not otherwise provided
for by statute or by these rules a presumption imposes on the
party against whom it is directed the burden of proving that
the nonexistence of the presumed fact is more probable than
its existence.” Neb. Evid. R. 301, Neb. Rev. Stat. § 27-301(Reissue 2016).
Additionally, to prove the predicate facts, a genetic test
“shall be admissible evidence” and “may be introduced by
verified written report without the need for foundation testi-
mony or other proof of authenticity or accuracy unless there is
a timely written request for personal testimony of the expert at
least thirty days prior to trial.” § 43-1415. See, also, State on
behalf of Dady v. Snelling, 10 Neb. App. 740, 637 N.W.2d 906(2001) (despite objection, genetic test showing 99.99-percent
probability of paternity created rebuttable presumption and
was sufficient evidence to establish paternity without need for
other evidence). Similarly, a “signed and notarized acknowl-
edgment of paternity . . . shall be admissible in evidence
in any proceeding to establish paternity without the need
for foundation testimony or other proof of authenticity or
- 761 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
EVAN S. V. LAURA H.
Cite as 31 Neb. App. 750accuracy.” § 43-1412(1). See, also, State on behalf of B.M. v.
Brian F., 288 Neb. 106, 846 N.W.2d 257 (2014) (§ 43-1409
creates evidentiary rebuttable presumption of paternity and
provides that acknowledgment is admissible evidence). Again,
the statutes related to genetic testing and an acknowledgment
of paternity are similar in that they provide for the admissibil-
ity of such evidence without the need for foundation testimony
or other proof of authenticity or accuracy, thus clearing the
way for a legal determination of paternity.
However, despite these similarities, the Nebraska Legislature
elected to treat a signed and notarized acknowledgment of
paternity differently from genetic testing in a significant aspect.
In § 43-1409, a person signing an acknowledgment of paternity
has the right to rescind that acknowledgment within the earlier
of 60 days or the date of an administrative or judicial proceed-
ing relating to the child. Once the rescission period has passed,
however, “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.” § 43-1409. “[T]he proper legal
effect of a signed, unchallenged acknowledgment of paternity
is a finding that the individual who signed as the father is in
fact the legal father.” Cesar C. v. Alicia L., 281 Neb. 979, 985,
800 N.W.2d 249, 254 (2011) (even though genetic test ruled
out man as biological father of child, establishment of pater-
nity by his acknowledgment was equivalent to establishment
of paternity by judicial proceeding; his complaint to establish
paternity should have been treated as complaint to determine
custody and support).
[10] The “legal finding” language contained in § 43-1409
related to a rebuttable presumption of paternity under an
acknowledgment of paternity is not contained in § 43-1415
related to a rebuttable presumption of paternity when a genetic
test shows a 99-percent probability of paternity. The rebut-
table presumption language contained in both §§ 43-1409
and 43-1415 was added to both statutes in 1994. See 1994
- 762 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
EVAN S. V. LAURA H.
Cite as 31 Neb. App. 750Neb. Laws, L.B. 1224, §§ 58 and 62. However, when the “legal
finding” language was added to § 43-1409 in 1997, it was not
added to § 43-1415. In enacting a statute, the Legislature must
be presumed to have knowledge of all previous legislation
upon the subject. Alisha C. v. Jeremy C., 283 Neb. 340, 808
N.W.2d 875 (2012). The Legislature is also presumed to know
the language used in its statutes, and if a subsequent act on the
same or similar subject uses different terms in the same con-
nection, the court must presume that a change in the law was
intended. Id. The Legislature could have given the same effect
to a genetic test showing a 99-percent probability of paternity
as it gave to a signed and notarized acknowledgment of pater-
nity, but it did not do so. We cannot read into the statute some-
thing which is not plainly there.
[11] In summary, while a genetic test result may be evi-
dence of paternity and can establish a rebuttable presumption
of paternity, it is not in itself a legal determination of paternity
in the same way as a signed and notarized acknowledgment of
paternity may be. As such, the 4-year statute of limitations set
forth in § 43-1411 applies to Evan’s action to establish pater-
nity. Unfortunately, despite knowing there was a 99.99-percent
probability that he was N.H.’s father since at least May 2017
when genetic testing was conducted, Evan waited more than 4
years to bring a paternity action, and therefore, he is now statu-
torily barred from doing so.
(b) No Exception Under § 43-1411
Evan further argues that “Nebraska law is clear that there
are additional exceptions to the four year statute of limita-
tions for a civil proceeding to establish paternity of a child.”
Brief for appellant at 7. He quotes from § 43-1411, which
we set forth in relevant part previously, and emphasizes with
boldface type the exception found at § 43-1411(1)(a)(ii),
which creates an exception to the limitations period when “a
county court or separate juvenile court has jurisdiction over
the custody of the child.” Evan offers no discussion as to why
- 763 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
EVAN S. V. LAURA H.
Cite as 31 Neb. App. 750this portion of the statute has any applicability in the present
matter. As we set forth previously, there is no evidence in the
record to indicate that there was any county court or separate
juvenile court proceeding pending with jurisdiction over N.H.
Without such a case, this exception is not applicable.
3. Constitutionality of § 43-1411
Evan also argues that § 43-1411 is unconstitutional because
it runs afoul of the Nebraska and U.S. Constitutions’ guaran-
tees of the right of parents to “direct the care, custody, and
control of their children.” Brief for appellant at 8. He argues
that application of the statute of limitations to bar his paternity
action “denie[s] his due process rights guaranteed to him by
the Fourteenth Amendment to the United States Constitution
and Article I-3 of the Nebraska State Constitution.” Brief for
appellant at 8. He also argues that § 43-1411 “sets an arbi-
trary statute of limitations of four years,” suggesting that any
time limitation on a parent’s right to assert his or her right to
bring a paternity action is unconstitutional. Brief for appel­
lant at 9.
[12] Our record does not show that Evan presented this
issue to the district court, at least based upon the oral argu-
ments made at the hearing on Laura’s motion to dismiss. Thus,
we are not required to address the argument on appeal. V.C.
v. Casady, 262 Neb. 714, 634 N.W.2d 798 (2001) (issues not
presented to trial court may not be raised on appeal). That said,
we nevertheless point out that the Nebraska Supreme Court
has previously held that § 43-1411 is constitutional because
it provides sufficient time for a natural parent, whether hav-
ing custody of the child or not, to assert his or her rights. See
Bryan M. v. Anne B., 292 Neb. 725, 737, 874 N.W.2d 824, 834
(2016) (in dismissal of paternity action brought 8 years after
birth of child, Supreme Court found § 43-1411 did not vio-
late biological father’s due process rights; “[r]ather than dili-
gently and prudently attempting to establish paternity within
the first 4 years after [child’s] birth, [biological father] did
- 764 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
EVAN S. V. LAURA H.
Cite as 31 Neb. App. 750nothing for 8 years”). See, also, State on behalf of S.M. v.
Oglesby, 244 Neb. 880, 510 N.W.2d 53 (1994) (State’s peti-
tion to establish paternity more than 12 years after child’s birth
permitted under § 43-1411 and did not violate Equal Protection
Clause of either Nebraska or U.S. Constitution).
VI. CONCLUSION
Although for reasons different from the district court’s as
set forth above, we affirm the court’s dismissal of Evan’s
complaint.
Affirmed.