State on Behalf of Dunn v. Wiegand

• Decision Date: 22 February 1994
• Docket Number: No. A-92-115,A-92-115
• Citation: 2 Neb.App. 580,512 N.W.2d 419
• Parties: STATE of Nebraska on Behalf of Gabriel Kole DUNN, a Minor Child, Appellee, v. David J. WIEGAND, Appellant.
• Court: Nebraska Court of Appeals

Page 419

512 N.W.2d 419

2 Neb.App. 580

STATE of Nebraska on Behalf of Gabriel Kole DUNN, a Minor Child, Appellee, v. David J. WIEGAND, Appellant.

No. A-92-115.

Court of Appeals of Nebraska.

Feb. 22, 1994.

Mark A. Johnson, of The Law Offices of Mark A. Johnson, Norfolk, for appellant.

Don Stenberg, Atty. Gen., and Royce N. Harper, Lincoln, for appellee.

CONNOLLY, HANNON, and WRIGHT, JJ.

HANNON, Judge.

The State of Nebraska brings this paternity action on behalf of Gabriel Kole Dunn, a minor, to establish David J. Wiegand, the respondent, as Gabriel's father. In the petition, the State prayed for a monthly allowance for the child's support; for an order requiring Wiegand to provide medical insurance coverage; "for the reasonable hospital, medical, and surgical expenses from and after the birth of said child in the amount of $10,948.67"; for attorney fees; and for other relief. After a pretrial conference, the court determined paternity, ordered child support and health insurance coverage, and granted judgment against Wiegand in the amount of $10,948.67. Wiegand appeals only that portion of the order which awards judgment against him for $10,033.31 of the $10,948.67, that is, for the medical expenses of the child's mother, Dawn Dunn, before the child's birth. We reverse that portion of the decree appealed.

TRIAL COURT PROCEEDINGS

The petition is captioned "State of Nebraska, on behalf of Gabriel Kole Dunn, a minor child, Petitioner, v. David J. Wiegand, [Social Security number,] Respondent." The petition states that the action is brought by a special deputy county attorney under Neb.Rev.Stat. §§ 43-512.03(1)(d) (Cum.Supp. 1992) and 43-1401 et seq. (Reissue 1988 & Cum.Supp.1992). The petition states the residence of the child and his parents; that the mother gave birth to the child on March 25, 1991; that Wiegand is the child's father; and that the parents have never been married to each other. The State then alleges the child is in need of support, that Wiegand The only allegation by the State bearing upon medical expenses is that "respondent is capable of paying for the hospital, doctor, medical, and other expenses incurred for the prenatal care, birth and physical needs of said child since birth." There are no other allegations concerning medical expenses of the child or of the mother before or after the birth. In the prayer, in addition to a request for determination of paternity and support, there is a request "for the reasonable hospital, medical, and surgical expenses from and after the birth of said child in the amount of $10,948.67."

has failed to provide support, and that Wiegand is capable of supporting the child and providing medical insurance for him. The petition also asserts that the State is currently providing support for the child in the form of aid to dependent children and other benefits.

Wiegand demurred to the petition on the basis that there was a defect of the parties plaintiff, that the State did not have the capacity to sue for medical expenses for any person other than the child, and that the petition did not state facts sufficient to constitute a cause of action for hospital, medical, and surgical expenses of $10,948.67. The demurrer was overruled. Thereafter, Wiegand filed his answer and admitted the birth of the child and the residence of the parties, but denied other allegations in the petition. He again alleged the same three points raised by the demurrer.

On January 17, 1992, a pretrial conference was held. There is no pretrial order or report in the record, but at that hearing the parties entered into stipulations, summarized below, and immediately thereafter the court entered the judgment that is being appealed.

The parties stipulated to paternity and to a worksheet which demonstrated the propriety of the support award of $255 per month, to commence on the first of the month following the order. The parties also stipulated that exhibit 1 shows medical expenses totaling $915.36, that these expenses were necessarily incurred as a result of the child's birth, and that the expenses were fair and reasonable. They further stipulated that the expenses on exhibit 2, totaling $10,033.31, were necessarily incurred as a result of the mother's pregnancy and that these expenses were fair and reasonable. Wiegand agreed that the State incurred $915.36 in expenses on behalf of the child and $10,033.31 on behalf of the mother.

The parties agreed that the court could enter its order immediately on the basis of the stipulations made at the pretrial conference. The court then found and ordered that Wiegand was the child's father, that Wiegand was to pay $255 per month for the child's support, and that Wiegand must maintain medical and hospitalization insurance on the child if such insurance was available through his employer or subsequent employers. Wiegand has no complaint regarding that part of the order.

In addition to the order issued at the hearing, the operative written order provided:

Judgment is hereby entered against respondent for $10,033.31 for medical expenses incurred by [the mother] and judgment is entered accordingly against respondent. The fair and reasonable medical expenses incurred by [the child] at his birth and paid by the State of Nebraska Department of Social Services was [sic] $915.36. Respondent has consented to a judgment being entered against him for $915.36 for birth related medical expenses of [the child] and judgment is entered accordingly against respondent.

ASSIGNMENTS OF ERROR

Wiegand alleges the trial court committed error (1) in entering judgment for $10,033.31 for medical expenses incurred by the child's mother when she was not a party and when the State presented no evidence showing any right to bring such an action on behalf of the mother; (2) by abusing its discretion in awarding judgment of $10,033.31 when the mother was not a party to the action; and (3) in awarding judgment for $10,033.31 on behalf of the mother as the claim was not properly before the court. These assignments raise two questions: (1) Does the petition state a cause of action for the $10,033.31 in medical expenses included in the judgments? and (2) Is the plaintiff the real party

in interest for collection of these medical expenses?

STANDARD OF REVIEW

The only issues raised are issues of law. On matters of law, an appellate court has the obligation to reach an independent conclusion, irrespective of the determination made by the court below. State v. Quandt, 234 Neb. 402, 451 N.W.2d 272 (1990).

MEDICAL EXPENSE ALLEGATIONS

We start by observing that insofar as the medical expenses are concerned, the State simply ignores clear statutory law and case law in several respects. Neb.Rev.Stat. § 25-804 (Reissue 1989) provides, in significant part, the following:

The petition must contain (1) the name of the court and county in which the action is brought, and the names of the parties, plaintiff and defendant; (2) a statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition; and (3) a demand for ... relief....

"It is elementary that a judgment must be supported by the pleadings." Harrison v. Grizzard, 192 Neb. 243, 245, 219 N.W.2d 766, 768 (1974). A judgment of personal liability must be supported by a pleading alleging it as a cause of action. Glissmann v. Orchard, 152 Neb. 500, 41 N.W.2d 756 (1950). A petition that does not state a cause of action will not support a judgment rendered thereon. Hague v. Sterns, 175 Neb. 1, 120 N.W.2d 287 (1963). At the very least, to recover medical expenses in any case, § 25-804 and the above cases require that the plaintiff allege facts which if true would establish that the claimed medical expenses were incurred by someone, the amount of the medical expenses, that the expenses were fair and reasonable, and such additional facts as might be necessary under the law to make the defendant responsible to the plaintiff for them. Since the petition contains no such allegations, it does not state a cause of action for medical expenses.

OWNERSHIP OF RIGHT TO RECOVER MEDICAL EXPENSES

Section 43-1407 provides:

The father of a child shall also be liable for the reasonable expenses of the mother of such child during the period of her pregnancy, confinement and recovery. Such liability shall be determined and enforced in the same manner as the liability of the father for the support of the child.

Section 43-1407 says the father shall be liable, but does not say to whom he is liable. These expenses were once called lying-in expenses, and the mother of the child could always recover them, even when the child was adopted or died. Bolich v. Robinson, 106 Neb. 449, 184 N.W. 218 (1921); Hanisky v. Kennedy, 37 Neb. 618, 56 N.W. 208 (1893). By statute, "all expenses associated with the birth of a child," are now included within the term "medical support." Neb.Rev.Stat. 43-512(6)(b) (Cum.Supp.1992). The Supreme Court recently held that it is the mother or her assignee, not the child, who holds the right to recover " 'medical expenses incurred in relation to the pregnancy, confinement and recovery....' " State on Behalf of S.M. v. Oglesby, 244 Neb. 880, 884, 510 N.W.2d 53, 56 (1994).

Therefore, it is the mother, not Gabriel, who holds the right to recover for the medical expenses incurred by his mother, and therefore the State has failed to properly state a claim for such expenses.

With proper allegations and proof, the father would be liable to the mother of the child born out of wedlock for all of the expenses associated with the birth of the child. Perhaps the father could be liable to others, such as the mother's parents, but there is no basis for holding that the father is liable to the child born out of wedlock for the medical expenses the mother incurred before the child's birth. (The defendant does not question the child's right to recover the cost of his birth, and therefore we are not...