Fetherkile v. Fetherkile
| Decision Date | 23 February 2018 |
| Docket Number | No. S-16-1159,S-16-1159 |
| Citation | 299 Neb. 76,907 N.W.2d 275 |
| Parties | Jessica Renee FETHERKILE, appellee, v. Brandon Lee FETHERKILE, appellant. |
| Court | Nebraska Supreme Court |
Angelo M. Ligouri, of Ligouri Law Office, for appellant.
No appearance for appellee.
Brandon Lee Fetherkile appeals from a dissolution decree entered by the Pawnee County District Court, which dissolved his marriage to Jessica Renee Fetherkile. The court ruled that Brandon was the legal father of Ariana D. and ordered him to pay child support for Ariana and two other children, pursuant to an order for support in a separate case.
Primarily, Brandon argues that the evidence showed that he was not the biological or legal father of Ariana; so, the court erred in finding that he was Ariana’s father and making any order regarding her. Further, he asserts that the court erred in not making an independent determination regarding child support and attaching a child support calculation worksheet to the decree.
We reject Brandon’s arguments because the existing order of support was res judicata on the issue of Brandon’s paternity and Brandon failed to elicit sufficient evidence to warrant a modification of the existing order of support. Further, because the court did not modify the existing order of support, it was not required to attach a worksheet to its decree. We also find Brandon’s remaining assignments of error to be without merit. Therefore, we affirm.
Brandon and Jessica were married in June 2010 and separated in March 2013. Jessica filed a complaint for dissolution in December 2014, and Brandon filed a counterclaim, which he labeled a cross-complaint, for dissolution in June 2015. Trial was held in November 2016.
Jessica has three children: a daughter, born in 2013; another daughter, born in 2008; and Ariana, born in 2006. In her complaint and during her direct testimony, Jessica alleged that Brandon was the legal father of all three children. In his counterclaim, Brandon disputed paternity over Ariana and requested genetic testing to determine whether he was the biological father.
In November 2014, in case No. CI 14-12, a separate proceeding in the Pawnee County District Court, the court entered an order for support, based upon a stipulation of the parties. It found that Brandon had acknowledged paternity of all three children, ruled that he was their father, and ordered Brandon to pay Jessica child support.
At the dissolution trial, Jessica requested the court to continue the order of child support from case No. CI 14-12. Nonetheless, upon cross-examination, Jessica testified that Brandon was not Ariana’s biological father. Jessica also stated that despite the fact she had put Brandon’s name on Ariana’s birth certificate, he never signed it, and that Brandon had been pursuing legal adoption of Ariana before the separation. She also acknowledged that Brandon has two other children not born of the marriage, including one which was born around August 2016. Further, the record does not reflect whether the biological testing that Brandon requested was ever performed.
The parties did not contest the division of assets. Jessica requested that the parties equally split all debts incurred before the separation and only debts related to their children after the separation. She testified and entered evidence concerning several debts related to medical expenses for the children. One exhibit, however, was a collection notice for a debt from Jessica’s bank account that Jessica testified was incurred before the separation.
Jessica also requested at least $3,000 from Brandon for attorney fees. She stated that she incurred extra expenses in the proceedings because of his delays, failures to appear, last minute continuances, and failure to timely respond to discovery requests, even after her having a motion to compel granted. She presented evidence that she incurred $7,420 of attorney fees for the proceedings.
After the close of the evidence, the court ruled from the bench. In doing so, it stated that it was "not going to change the child support in this case," because Brandon had failed to produce sufficient evidence of his change in income to justify a modification. Further, it explained that Brandon still had the opportunity to seek a modification of the support order by filing for a modification in the prior case. Additionally, the court divided all of the debts submitted into evidence equally, ordered Brandon to pay $3,000 of Jessica’s attorney fees, and ordered that neither party was required to provide insurance for the children.
At a later date, the court signed a decree of dissolution which ordered Brandon to provide child support pursuant to the order of support in effect from case No. CI 14-12. Brandon filed a timely appeal. We removed the case to our docket on our own motion pursuant to our authority to regulate the case-loads of the Nebraska Court of Appeals and this court.1
Brandon assigns, reordered and restated, that the court erred in (1) not attaching a Nebraska child support worksheet to the decree; (2) ordering child support pursuant to a prior order in separate proceedings; (3) not allowing Brandon to present evidence on his cross-claim or respond to Jessica’s presentation of evidence; (4) finding that Ariana was a child of the parties; (5) determining custody, parenting time, child support, and expenses of Ariana, because she is not Brandon’s child; (6) ordering child support and income tax dependencies based on three children; (7) equally splitting all of the parties’ outstanding bank debts; and (8) awarding Jessica attorney fees. He also asserts, restated, that the court’s ruling was erroneous because (9) it was unjust, inequitable, and could not be reached as a matter of law and (10) it was contrary to the evidence and the law and constituted an abuse of discretion.
Statutory interpretation presents a question of law.2 When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.3
In an action for the dissolution of marriage, an appellate court reviews de novo on the record the trial court’s determinations of custody, child support or a modification of an existing order of support, property division, alimony, and attorney fees; these determinations, however, are initially entrusted to the trial court’s discretion and will normally be affirmed absent an abuse of that discretion.4
A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.5
In a review de novo on the record, the court is required to make independent factual determinations based upon the record, and the court reaches its own independent conclusions with respect to the matters at issue. When evidence is in conflict, the appellate court considers and may give weight to the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another.6
Brandon’s first six assignments of error concern the issues of paternity, child support, and other determinations regarding Ariana. Brandon contends the court erred in finding Ariana to be his child and making various determinations regarding Ariana as a child of the parties.
He also contends that the court violated his due process rights by adopting the order of support in case No. CI 14-12, rather than making its own independent conclusions, and preventing him from presenting evidence to challenge Jessica’s case or present his own case. Finally, Brandon contends that the court violated
Neb. Ct. R. § 4-203 (rev. 2011) by failing to attach a Nebraska child support calculation worksheet to the decree.
Brandon asserts that the evidence shows that he is not Ariana’s father and that nothing in the record supports a finding that he was a legal parent of her, despite Jessica’s false accusation in her complaint.
At common law, the father of a child born out of wedlock had no legal obligation to support the child; that common-law rule was changed by legislative action.7 Actions to determine paternity are governed by Neb. Rev. Stat. §§ 43-1401 through 43-1418 (Reissue 2016). Paternity proceedings are purely statutory, and such statutes must be strictly construed because they modify the common law.8
Despite Brandon’s assertion, however, the order of support in case No. CI 14-12 was entered into evidence and contained a determination of paternity that, if res judicata on the issue, would have precluded the trial court in this case from making an independent determination on the issue of paternity.
We have not previously considered whether an order of support under Neb. Rev. Stat. § 43-512.04 (Reissue 2008) is res judicata on the issue of paternity. However, we have repeatedly held that any dissolution decree that orders child support is res judicata on the issue of paternity.9
Claim preclusion bars relitigation of any right, fact, or matter directly addressed or necessarily included in a former adjudication if (1) the former judgment was rendered by a court of competent jurisdiction, (2) the former judgment was a final judgment, (3) the former judgment was on the merits, and (4) the same parties or their privies were involved in both actions.10 The doctrine bars relitigation not only of those matters actually litigated, but also of those matters which might have been litigated in the prior action.11 The doctrine rests on the necessity to terminate litigation and on the belief that a person should not be vexed twice...
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