State on behalf of Elijah K. v. Marceline K.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/01/2020 08:06 AM CDT
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE ON BEHALF OF ELIJAH K. v. MARCELINE K.
Cite as 28 Neb. Ct. App. 772
State of Nebraska on behalf of Elijah K.,
a minor child, appellee, v. Marceline K.,
appellant, and John T., appellee.
___ N.W.2d ___
Filed August 25, 2020. No. A-19-981.
1. Paternity: Appeal and Error. In a filiation proceeding, the appellate
court reviews the trial court’s judgment de novo on the record to deter-
mine whether there has been an abuse of discretion by the trial judge,
whose judgment will be upheld in the absence of an abuse of discretion.
In such de novo review, when the evidence is in conflict, the appellate
court considers, and may give weight to, the fact that the trial judge
heard and observed the witnesses and accepted one version of the facts
rather than another.
2. Paternity: Child Support: Appeal and Error. A trial court’s award
of child support in a paternity case will not be disturbed on appeal in
the absence of an abuse of discretion. On questions of law, however,
the appellate court has an independent obligation to reach the correct
conclusion.
3. Child Support: Parties: Public Assistance. The remedy specified in
Neb. Rev. Stat. § 43-512.03 (Reissue 2016) is a means by which the
State, as the real party in interest, may recover amounts which it has
paid or is obligated to pay on behalf of a dependent child. Thus, the
State’s right to sue under § 43-512.03 is conditioned upon the payment
of public assistance benefits for a minor child.
4. Paternity: Limitations of Actions. A guardian, next friend of the child,
or the State is authorized to bring a paternity action on behalf of a child
under Neb. Rev. Stat. § 43-1411(2) (Reissue 2016) within 18 years after
the child’s birth.
5. ____: ____. Neb. Rev. Stat. § 43-1411 (Reissue 2016) does not
extend the statute of limitations for anyone other than the minor child
involved.
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STATE ON BEHALF OF ELIJAH K. v. MARCELINE K.
Cite as 28 Neb. Ct. App. 772
6. Paternity: Child Support. Pursuant to Neb. Rev. Stat. § 43-1411
(Reissue 2016), the State, in its parens patriae role, may bring a pater-
nity action on behalf of a minor child for future support.
7. ____: ____. Retroactive support is included in the support that the trial
court may order under Neb. Rev. Stat. § 43-1412(3) (Reissue 2016).
8. Paternity: Child Support: Public Assistance. The State’s right to sue
under Neb. Rev. Stat. § 43-1411 (Reissue 2016) is not conditioned upon
the payment of public assistance benefits for the minor child.
9. Actions: Parties. In an action filed by the State under Neb. Rev. Stat.
§ 43-1411 (Reissue 2016), the minor child is the real party in inter-
est, and the State is authorized by statute to bring the action on the
child’s behalf.
Appeal from the District Court for Sarpy County: George
A. Thompson, Judge. Affirmed.
Britt H. Dudzinski, of Lustgarten & Roberts, P.C., L.L.O.,
for appellant.
Jerome J. Ortman for appellee John T.
Pirtle, Bishop, and Welch, Judges.
Bishop, Judge.
INTRODUCTION
Marceline K. appeals from the judgment of the Sarpy County
District Court which established that she and John T. are the
biological parents of their minor child, Elijah K., and ordered
John to pay monthly child support. John was also ordered to
pay child support retroactive to the filing of the complaint to
establish paternity brought by the State of Nebraska in 2017.
Marceline challenges the district court’s decision to not order
retroactive child support back to the date of Elijah’s birth in
2011. We affirm.
BACKGROUND
Marceline and John began a dating relationship in 2010;
Elijah was born in September 2011. Since his birth, Elijah has
lived with Marceline in Sarpy County, Nebraska. Marceline
and John never married each other, nor lived together. John
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STATE ON BEHALF OF ELIJAH K. v. MARCELINE K.
Cite as 28 Neb. Ct. App. 772
was incarcerated from the time of Elijah’s birth until Elijah
was 6 months old. Marceline indicated that John first met
Elijah in March 2012. For about 1 month, John briefly visited
Elijah “a couple times a week.” From then until August, John
saw Elijah briefly “a few times.” There were periods in 2012
and 2013 when Marceline and John ended and restarted dat-
ing. They tried to reconcile in August and September 2013,
and John would have seen Elijah during that time. John saw
Elijah for about 15 minutes on a day in October. Marceline
and John ended their relationship sometime in 2013. John had
no in-person contact and little telephone contact with Elijah
over the next 4 years. At some point, John moved to North
Carolina.
On September 11, 2017, the State, acting individually and
also on behalf of Elijah, filed a complaint pursuant to Neb. Rev.
Stat. §§ 43-512.03 and 43-512.04 (Reissue 2016), “and other
pertinent Nebraska Statutes,” to establish paternity of Elijah.
The State alleged that Marceline and John were Elijah’s bio-
logical parents and that both had an ongoing duty and obliga-
tion to support Elijah since Elijah’s birth. Among other things,
the State asked for entry of a judgment of paternity decreeing
that John was Elijah’s father and ordering John to pay current,
prospective, and retroactive monthly child support.
In his answer, John admitted that he was Elijah’s biologi-
cal father and also alleged that he had two other minor chil-
dren with a third party. In the same filing, John included a
cross-complaint against Marceline regarding matters such as
child custody and parenting time. Marceline also filed a cross-
complaint against John seeking legal and physical custody of
Elijah, child support and retroactive child support, and resolu-
tion of “other paternity-related issues.”
Trial took place on August 2, 2019. Marceline and John
had already reached agreement on many issues, including
paternity, child custody, the amount of John’s monthly child
support obligation, and portions of parenting time. Among
the remaining disputed issues for trial was the retroactivity of
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STATE ON BEHALF OF ELIJAH K. v. MARCELINE K.
Cite as 28 Neb. Ct. App. 772
child support, which is the sole issue on appeal. At the begin-
ning of trial, the State indicated it did not have a position on
that issue. The State said that at the time of trial and “for some
time” since the matter had been filed, “there ha[d] been no
public assistance.” The State deferred to the district court on
the issue. The State was then excused from trial without objec-
tion by either party; Marceline and John then proceeded to
adduce evidence.
At the time of trial, Elijah was about a month shy of turn-
ing 8 years old. He was still living at the same residence in
Nebraska with Marceline; Marceline’s mother and grandmother
also lived there. John was living in North Carolina with his
wife and their two children, ages 3 and 4. Marceline’s evi-
dence, along with what we discussed above, was essentially
that John spent limited time with Elijah.
John admitted that he had not contributed financial sup-
port to Elijah from when Elijah was born. He testified that he
“wasn’t in [Elijah’s] life at that moment,” and “[b]ack then”
he was not financially stable, and they “were kids.” Regarding
child support, John’s counsel questioned Marceline as follows:
Q. [by John’s counsel] Did you personally file either of
the lawsuits filed by the State of Nebraska?
A. [by Marceline] No, sir.
....
Q. . . . [Y]ou’ve never done anything to pursue the
paternity, have you?
A. Yes, I have.
Q. You filed a cross[-]complaint after the State filed
the last time, correct?
A. No.
....
Q. Well, didn’t you file a cross[-]complaint?
A. Well, yes, that was after I filled out child support
papers five times.
Q. Right because you were receiving public assistance?
A. No, sir.
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STATE ON BEHALF OF ELIJAH K. v. MARCELINE K.
Cite as 28 Neb. Ct. App. 772
Q. What were you receiving?
A. When [Elijah] was first born he got Medicaid. Other
than that —
The parties agreed that John’s monthly child support obli-
gation, both for future and retroactive child support, should
be $363 per month. Marceline wanted John to pay retroactive
child support back to October 1, 2011, which was the first day
of the month following Elijah’s birth, at the rate of $108 per
month. John conceded that he was willing to pay retroactive
child support at that rate. However, he wanted child support to
go back only to the first day of the month after he was served
with the State’s complaint.
On October 4, 2019, the district court issued a “Judgment
of Paternity.” Marceline and John were declared Elijah’s bio-
logical parents. Marceline was awarded the legal and physi-
cal custody of Elijah, subject to John’s parenting time as set
forth in a parenting plan attached to the order. The district
court noted that Marceline asked for an award of child sup-
port retroactive to Elijah’s birth, whereas John asked that
child support be awarded retroactively only to the date of the
State’s complaint.
The district court found that this action was brought by the
State on behalf of Elijah pursuant to “Neb. Rev. Stat. §43-512
[sic] (Assistance for Certain Children).” The district court
then stated:
Neither [Marceline] nor [John] has the ability to bring
a paternity action as the statute of limitations has long
since passed. As such, the cause of action for retroactiv-
ity belongs to the minor child through the State and not
[Marceline]. The State’s Complaint requests “an Order
requiring [John] to pay current, prospective and retroac-
tive monthly child support for said child.” The State’s
interest in this matter occurred when [Marceline] began
to receive public assistance. When this happened, the
State received its statutory authority to file the paternity
action. The record is unclear exactly when [Marceline]
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STATE ON BEHALF OF ELIJAH K. v. MARCELINE K.
Cite as 28 Neb. Ct. App. 772
began to receive aid. The Court finds that this date is
important because the Dunkle Court limited retroactive
child support to the date a mother began to receive public
assistance. The Court therefore finds that the State, hav-
ing failed to evince when [Marceline] began receiving
aid, should be limited to retroactive child support back
to the date of the filing of its Complaint through the
minor child.
The district court further reviewed the determination of
retroactivity under the district court’s exercise of its equitable
powers. It found that Marceline “failed to bring any paternity
case during the four years after the birth of the child” and that
“[w]hile she shouldered the burden of raising [Elijah], she also
controlled when [John] would have contact with him.” The
district court observed that Marceline now sought to enforce
a judgment which was a “financial detriment” to John. “Any
amount of retroactive child support would be askew from the
proper amount due each year from the child support guidelines
given the number of years and variability of income for the
parties during these years.” The district court added that the
lump sum would be significant and that John would have an
“inability to pay such an amount for anything due prior to the
filing of the [State’s] [c]omplaint.” The district court found it
was equitable to limit the award of retroactive child support to
October 1, 2017, the first day of the month after the State filed
its complaint.
John was ordered to pay child support of $358 per month,
retroactive to October 1, 2017; although the district court
indicated it found the parties’ stipulation to a monthly child
support amount ($363 per month) to be “acceptable,” it based
the ordered amount of $358 per month on its own, slightly
different, child support calculation and attached its calculation
to its order. Marceline does not assign error to this calcula-
tion. In addition to John’s regular child support obligation,
beginning on October 1, 2019, he was to pay an additional
$108 per month toward the child support arrearage owed as
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STATE ON BEHALF OF ELIJAH K. v. MARCELINE K.
Cite as 28 Neb. Ct. App. 772
a result of the retroactive child support ordered until the
arrearage was paid in full.
Marceline appeals.
ASSIGNMENTS OF ERROR
Marceline claims the district court erred by (1) denying her
request to make child support retroactive to Elijah’s date of
birth and (2) determining that John was unable to pay retroac-
tive child support.
STANDARD OF REVIEW
[1] In a filiation proceeding, the appellate court reviews
the trial court’s judgment de novo on the record to deter-
mine whether there has been an abuse of discretion by the
trial judge, whose judgment will be upheld in the absence
of an abuse of discretion. State on behalf of Hopkins v. Batt,
253 Neb. 852, 573 N.W.2d 425 (1998), overruled on other
grounds, State on behalf of Miah S. v. Ian K., 306 Neb. 372,
945 N.W.2d 178 (2020). In such de novo review, when the
evidence is in conflict, the appellate court considers, and may
give weight to, the fact that the trial judge heard and observed
the witnesses and accepted one version of the facts rather than
another. Id.
[2] A trial court’s award of child support in a paternity case
will not be disturbed on appeal in the absence of an abuse of
discretion. Id. On questions of law, however, the appellate
court has an independent obligation to reach the correct con-
clusion. Id.
ANALYSIS
Marceline claims the district court abused its discretion by
(1) not making child support retroactive to Elijah’s date of
birth and (2) finding that John was unable to pay retroactive
child support back to that date.
Marceline argues that the district court “incorrectly” stated
in its order that this action was brought pursuant to Neb.
Rev. Stat. § 43-512 (Reissue 2016), “while the actual [com-
plaint] cites Nebraska Revised Statute § 43-513.02 [sic], which
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STATE ON BEHALF OF ELIJAH K. v. MARCELINE K.
Cite as 28 Neb. Ct. App. 772
authorizes a county attorney to establish paternity and collect
child and medical support on behalf of children born out of
wedlock, as here.” Brief for appellant at 13. She believes the
State did not need to further evince when she began receiving
aid, claiming she “never” received “aid or public assistance.”
Id. She asserts that because the State’s complaint was filed
“correctly” under “§ 43-513.02 [sic],” the district court’s deter-
mination that public assistance was relevant to an award of
retroactive child support was an abuse of discretion. Brief for
appellant at 13.
[3] The State, acting individually and also on behalf of
Elijah, filed its complaint pursuant to §§ 43-512.03 and
43-512.04, “and other pertinent Nebraska Statutes.” Section
43-512.03 provides for various types of child support enforce-
ment actions. Under § 43-512.03(1), the county attorney or
authorized attorney shall:
(a) On request by the Department of Health and Human
Services [after its periodic review of cases of individuals
receiving enforcement services] or when the investigation
or application filed under section 43-512 or 43-512.02
justifies, file a complaint against a nonsupporting party
in the district, county, or separate juvenile court praying
for an order for child or medical support in cases when
there is no existing child or medical support order. After
notice and hearing, the court shall adjudicate the child
and medical support liability of either party and enter an
order accordingly;
(b) Enforce child, spousal, and medical support orders
by an action for income withholding pursuant to the
Income Withholding for Child Support Act;
(c) In addition to income withholding, enforce child,
spousal, and medical support orders by other civil actions
or administrative actions, citing the defendant for con-
tempt, or filing a criminal complaint;
(d) Establish paternity and collect child and medical
support on behalf of children born out of wedlock; and
(e) Carry out sections 43-512.12 to 43-512.18.
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STATE ON BEHALF OF ELIJAH K. v. MARCELINE K.
Cite as 28 Neb. Ct. App. 772
Section 43-512.04 relates to the procedure involved and manner
of proceedings in an action for child support or medical sup-
port. These statutes appear under the article titled “Assistance
for Certain Children” and are part of a collection of provisions
that are to be construed to be “new, supplemental, and indepen-
dent legislation upon the subjects of assistance and services for
delinquent, dependent, and medically handicapped children.”
See Neb. Rev. Stat. § 43-501 (Reissue 2016). A dependent
child is one who receives or is entitled to receive public assist­
ance. See, Neb. Rev. Stat. § 43-504(1) (Reissue 2016); State
on behalf of Hopkins v. Batt, 253 Neb. 852, 573 N.W.2d 425
(1998), overruled on other grounds, State on behalf of Miah S.
v. Ian K., 306 Neb. 372, 945 N.W.2d 178 (2020). The remedy
specified in § 43-512.03 is a means by which the State, as the
real party in interest, may recover amounts which it has paid
or is obligated to pay on behalf of a dependent child. State on
behalf of Hopkins v. Batt, supra. Thus, the State’s right to sue
under § 43-512.03 is conditioned upon the payment of public
assistance benefits for a minor child. See State on behalf of
Hopkins v. Batt, supra.
The State filed its complaint under the authority given to it
by § 43-512.03. Section 43-512.03(1)(d) allows the State to
establish paternity and collect child support on behalf of Elijah.
However, the State’s right to an action under that section was
conditioned on the State having provided or being obligated to
provide Elijah public assistance during some time period. See
State on behalf of Hopkins v. Batt, supra.
The State did not allege in its complaint that Elijah ever
received or was entitled to receive public assistance. Although
it is not evidence, it is worth noting the State’s comment at trial
that at that time and “for some time” since the matter had been
filed, “there ha[d] been no public assistance.” The State did not
have a position on retroactive child support. Further, the only
trial evidence regarding this topic was Marceline’s testimony
that when Elijah was “first born,” he received Medicaid, and
her indication that she was not receiving public assistance at
the time she filed her cross-complaint, which was about 10
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STATE ON BEHALF OF ELIJAH K. v. MARCELINE K.
Cite as 28 Neb. Ct. App. 772
months after the State filed its complaint. We agree with the
district court’s finding that the record is “unclear” as to when
Marceline began to receive aid for Elijah’s benefit; however,
as we will explain next, such evidence is not pertinent to our
disposition of this appeal.
By the time of trial, the State had no position on the retro-
activity of child support, presumably because it was no longer
seeking recovery for itself of public assistance amounts, if
any, that it paid or would be paying on behalf of Elijah. See
id. (under § 43-512.03, State, as real party in interest, may
recover amounts it has paid or is obligated to pay on behalf
of dependent child). In fact, given that the State took no posi-
tion on the issue during trial, the State’s counsel was excused
from trial shortly after it began. There is no question that under
§ 43-512.03, the State was limited to recover only amounts it
had paid or was obligated to pay on behalf of Elijah, and there
was no evidence of such past payments or future obligations.
See State on behalf of Hopkins v. Batt, supra (as real party in
interest under § 43-512.03, State may recover amounts which
it has paid or is obligated to pay on behalf of dependent child).
Therefore, we do not agree with the district court that retroac-
tive child support could be awarded under § 43-512.03, given
the lack of evidence adduced by the State as to public assist­
ance amounts the State paid or was obligated to pay on behalf
of Elijah.
[4,5] However, Marceline, John, and the district court also
refer to other statutes and cases related to the application of
Neb. Rev. Stat. § 43-1411 (Reissue 2016). Under § 43-1411,
a civil proceeding to establish the paternity of a child may be
instituted by (1) the mother or alleged father of such 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. As correctly pointed out by the district court, Marceline
and John were time barred from filing such an action under
§ 43-1411(1) in their individual capacities. But a guardian,
next friend of the child, or the State was authorized to bring
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STATE ON BEHALF OF ELIJAH K. v. MARCELINE K.
Cite as 28 Neb. Ct. App. 772
an action on Elijah’s behalf within 18 years after his birth. See
§ 43-1411(2). See, also, State on behalf of S.M. v. Oglesby,
244 Neb. 880, 510 N.W.2d 53 (1994) (§ 43-1411 does not
extend statute of limitations for anyone other than minor child
involved). And while the State did not specifically allege that
it was filing its complaint under § 43-1411, it can be con-
strued to have generally done so by stating that its complaint
was brought individually and “also on behalf of [Elijah]”
pursuant to §§ 43-512.03 and 43-512.04, “and other pertinent
Nebraska Statutes.”
[6-9] The Nebraska Supreme Court has construed § 43-1411
as a means by which the State, in its parens patriae role, may
bring a paternity action on behalf of a minor child for future
support. See, State on behalf of Hopkins v. Batt, 253 Neb. 852,
573 N.W.2d 425 (1998), overruled on other grounds, State on
behalf of Miah S. v. Ian K., 306 Neb. 372, 945 N.W.2d 178
(2020); State on behalf of B.A.T. v. S.K.D., 246 Neb. 616, 522
N.W.2d 393 (1994); State on behalf of S.M. v. Oglesby, supra.
Where paternity is established in an action commenced under
Neb. Rev. Stat. § 43-1412 (Reissue 2016), the court shall retain
jurisdiction and order the father to pay support, court costs, and
reasonable attorney fees. This court has held that retroactive
support is included in the support that the trial court may order
under § 43-1412(3). See Henke v. Guerrero, 13 Neb. Ct. App. 337,
692 N.W.2d 762 (2005). In contrast to § 43-512.03, the State’s
right to sue under § 43-1411 is not conditioned upon the pay-
ment of public assistance benefits for the minor child. State
on behalf of Hopkins v. Batt, supra. And, in an action filed
by the State under § 43-1411, the minor child is the real party
in interest, and the State is authorized by statute to bring the
action on the child’s behalf. See State on behalf of Hopkins v.
Batt, supra.
Therefore, evidence of whether and when Marceline received
public assistance or was eligible to receive public assistance on
behalf of Elijah is irrelevant to a claim brought by the State
under § 43-1411 on behalf of Elijah in terms of Elijah’s right
to past, present, and future child support. See State on behalf
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STATE ON BEHALF OF ELIJAH K. v. MARCELINE K.
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of Hopkins v. Batt, supra. We recognize that § 43-1411 was
not specifically pled by the State in its complaint, nor was any
argument made by the State to the district court related to this
statute. Rather, the State abandoned any claim for itself or on
behalf of Elijah related to retroactive child support. As such,
it is understandable that the district court focused on applying
§ 43-512.03 when considering retroactivity rather than apply-
ing § 43-1411 to the evidence presented.
That said, as previously noted, this court has held that ret-
roactive support is included in the support that the trial court
may order under § 43-1412(3). See Henke v. Guerrero, supra.
Therefore, the district court had the authority to award retro-
active child support on behalf of Elijah in this case pursuant
to § 43-1412(3), but, notably, the State has not appealed the
district court’s rationale and decision limiting retroactive child
support to the month following commencement of the State’s
action. And as correctly stated by the district court in its order,
“the cause of action for retroactivity belongs to the minor child
through the State and not [Marceline].” Since the State is the
party that filed on behalf of Elijah, and the State did not appeal
the district court’s decision related to retroactive support, the
question is whether Marceline can do so. As we explain next,
we conclude she cannot.
As already discussed, neither Marceline nor John could
bring an action in her or his own right pursuant to § 43-1411 to
establish paternity and support, as the 4-year statute of limita-
tions had long since passed. Only a guardian, next friend of a
minor child, or the State could bring such an action within 18
years after the child’s birth. The State did in fact file its action
in this case in its individual capacity and on behalf of Elijah.
Marceline, however, brought her cross-complaint only in her
individual capacity; she did not bring her action on behalf of
Elijah. In her cross-complaint, Marceline pled: “Defendant
Mother, [Marceline], pursuant to Neb. Rev. Stat. Section
43-1411, et. seq., for her cause of action against the Defendant
Father, states as follows[.]” Marceline asserts “her” cause
of action against John, and nowhere in her cross-complaint
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STATE ON BEHALF OF ELIJAH K. v. MARCELINE K.
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does Marceline assert any cause of action on behalf of Elijah.
Marceline’s individual right to bring “her” cause of action
under § 43-1411 to establish paternity and support was time
barred. While Marceline may have been able to file as next
friend on behalf of Elijah to state a claim for his right to ret-
roactive support, she did not do so. See, e.g., Sylvis v. Walling,
248 Neb. 168, 532 N.W.2d 312 (1995) (cause of action for
retroactive support of child born out of wedlock belongs not
to mother, but to child; mother brought action as next friend of
child after 4-year statute of limitations but before minor child’s
18th birthday, so action was not time barred). Marceline, in
her individual capacity, cannot appeal a right belonging to
Elijah when she failed to join the action on his behalf as his
next friend. Instead, only the State was positioned to assert any
claims on behalf of Elijah, and it has elected to not appeal any
aspect of the district court’s decision.
Accordingly, we need not further address Marceline’s argu-
ments related to retroactive child support.
CONCLUSION
The October 4, 2019, judgment of the district court is
affirmed.
Affirmed.