Alisha C. v. Jeremy C.
| Decision Date | 24 February 2012 |
| Docket Number | No. S–11–233.,S–11–233. |
| Citation | 283 Neb. 340,808 N.W.2d 875 |
| Parties | ALISHA C., appellee, v. JEREMY C., appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. Statutes: Judgments: Appeal and Error. The meaning of a statute is a question of law, which an appellate court resolves independently of the trial court.
2. Parent and Child: Paternity: Presumptions: Evidence. Under Nebraska common law, later embodied in Neb.Rev.Stat. § 42–377 (Reissue 2008), legitimacy of children born during wedlock is presumed, and this presumption may be rebutted only by clear, satisfactory, and convincing evidence.
3. Jurisdiction: Divorce: Paternity: Child Support. The district court has jurisdiction to determine whether the husband is the biological father of a child to be supported as a result of a dissolution decree.
4. Divorce: Paternity: Child Support. Even if paternity is not directly placed in issue or litigated by the parties to a dissolution proceeding, any dissolution decree which orders child support implicitly makes a final determination of paternity.
5. Divorce: Paternity: Child Support: Res Judicata. A dissolution decree that orders child support is res judicata on the issue of paternity.
6. Divorce: Modification of Decree: Paternity: Evidence: Res Judicata. Neb.Rev.Stat. § 43–1412.01 (Reissue 2008) overrides res judicata principles and allows, in limited circumstances, an adjudicated father to disestablish a prior, final paternity determination based on genetic evidence that the adjudicated father is not the biological father.
7. Statutes. Statutes relating to the same subject are in pari materia and should be construed together.
8. Statutes. A statute is not to be read as if open to construction as a matter of course.
9. Statutes. If the language of a statute is clear, the words of such statute are the end of any judicial inquiry regarding its meaning.
10. Statutes. In the absence of ambiguity, courts must give effect to statutes as they are written.
11. Statutes: Legislature: Presumptions. In enacting a statute, the Legislature must be presumed to have knowledge of all previous legislation upon the subject.
12. Parent and Child: Paternity. Neb.Rev.Stat. § 43–1412.01 (Reissue 2008) gives the court discretion to determine whether disestablishment of paternity is appropriate in light of both the adjudicated father's interests and the best interests of the child.
13. Statutes: Legislature: Public Policy. It is properly the function of the Legislature through the enactment of statutes to declare what is the law and public policy of this state.
James H. Hoppe, Lincoln, and Jerrod P. Jaeger for appellant.
Kevin Ruser, of University of Nebraska Civil Clinical Law Program, Lincoln, and Troy J. Bird and Austin A. Leighty, Senior Certified Law Students, for appellee.
Jeremy C. and Alisha C. were married in September 2001. By 2006, they were separated. Throughout their separation, they would periodically reunite, only to separate again. One such reunion occurred on February 14, 2007.
In March 2007, Alisha discovered that she was pregnant and that the baby had been conceived sometime around February 14. Alisha did not recall having intercourse with anyone other than Jeremy during the period of conception. She was recovering from a methamphetamine addiction, however, and testified that this affected her memory.
Alisha informed Jeremy that he was going to be a father. When Jeremy expressed doubts about his paternity, Alisha told him she was “110 percent sure” he was the father because she had been with no one else during that time. Alisha told Jeremy that if he did not believe her, he could get a paternity test once the baby was born. Jeremy, however, lacked the funds to pay for genetic testing.
was born in November 2007. After further reassurances from Alisha that she was “110 percent sure” he was the father, and inquiries into whether the child looked like him, Jeremy signed the birth certificate as Brady's father. Jeremy was not asked to sign a notarized acknowledgment of paternity as described by Neb.Rev.Stat. § 43–1408.01 (Reissue 2008). After Brady's birth, Jeremy saw Brady approximately once a week. He still had doubts as to whether he was Brady's father, but Alisha continuously assured him that he was.
In January 2009, Alisha filed for dissolution of the marriage. On August 11, Jeremy signed a property settlement and custody agreement which had attached to it a parenting plan. The agreement referred to Brady as “the minor child of the parties.” Jeremy agreed to visitation with Brady one evening a week and on Jeremy's birthday and Father's Day. Jeremy agreed to pay $498 per month in child support commencing August 1 and to be responsible for 70 percent of childcare expenses. He agreed to pay Brady's health insurance in the event Medicaid coverage became unavailable.
The district court entered a decree of dissolution on September 17, 2009, when Brady was almost 2 years old. Jeremy was not present or represented at the dissolution hearing, but he had previously entered a voluntary appearance on January 28, 2009. The court noted that one child, Brady, was born as issue of the marriage. The court found the terms and provisions of the property settlement and custody agreement to be fair and equitable and incorporated the provisions of the agreements into its decree of dissolution.
Approximately 1 month later, Jeremy's mother agreed to pay for a paternity test. The test was conducted shortly thereafter, and the parties agree the test demonstrated that Jeremy is not Brady's biological father. On November 17, 2009, 61 days after the dissolution decree, Jeremy filed a “Complaint to Set Aside Legal Determination of Paternity.” The determination of paternity referred to in the complaint was the decree of dissolution. Jeremy alleged that a decree modifying or setting aside the custody and child support order was warranted on the grounds of fraud or newly discovered evidence, or under the provisions of Neb.Rev.Stat. §§ 43–1401 to 43–1418 (Reissue 2008).
The district court denied the complaint. The court found that the evidence did not support a claim of fraud and that the claim of newly discovered evidence did not afford relief because Jeremy failed to exercise due diligence in raising the issue of paternity in a timely manner. The court found that the provisions of §§ 43–1401 to 43–1418 did not apply as a matter of law to a child born during the course of a marriage. An order of garnishment in aid of execution of Jeremy's child support obligations was issued in March 2010.
Jeremy appeals the district court's February 18, 2011, order denying his “Complaint to Set Aside Legal Determination of Paternity,” insofar as it sought relief under § 43–1412.01.
Jeremy assigns that the district court erred in finding that §§ 43–1401 to 43–1418 do not apply to minor children born during a marriage.
The meaning of a statute is a question of law, which an appellate court resolves independently of the trial court.1
The sole issue in this appeal is whether the disestablishment of paternity provision, § 43–1412.01, applies to adjudicated fathers who were married to the child's biological mother at the time of conception. This presents an issue of first impression for our court. To better understand the arguments currently before us, we explore the law before the passage of § 43–1412.01, the statutory scheme in which § 43–1412.01 is found, and similar statutory provisions in other states.
Under Nebraska common law, later embodied in Neb.Rev.Stat. § 42–377 (Reissue 2008), legitimacy of children born during wedlock is presumed. This presumption may be rebutted only by clear, satisfactory, and convincing evidence.2 The testimony or declaration of a husband or wife is not competent to challenge the paternity of a child.3
The marital presumption of paternity has a long history that derives from what became known as Lord Mansfield's Rule. At a time when biological paternity was difficult to establish,4 Lord Mansfield's Rule protected children from illegitimacy by assuming a child born during the marriage belonged to the husband and prohibiting the husband and wife from testifying against each other to overcome this presumption.5
With the advent of genetic testing, this marital presumption of paternity can now be overcome by scientifically reliable evidence that the husband is not the biological father of the child.6 Genetic testing can also establish paternity of children born out of wedlock.7
The parentage of a child born during a marriage is traditionally contested, if at all, in dissolution proceedings.8 The marital presumption of paternity can be rebutted at that time.9 The district court has jurisdiction to determine whether the husband is the biological father of a child to be supported as a result of a dissolution decree. 10
Even if paternity is not directly placed in issue or litigated by the parties to a dissolution proceeding, any dissolution decree which orders child support implicitly makes a final determination of paternity. 11 When the parties fail to submit evidence at the dissolution proceeding rebutting the presumption of paternity, the dissolution court can find paternity based on the presumption alone. In DeVaux v. DeVaux, 12 we explained that a trial court necessarily makes such a finding when it orders child support, for “the trial court could not have ordered child support without finding that [the presumed father] was the father of the child.”
As a result, any dissolution decree that orders child support is res judicata on the issue of paternity.13 Under common law, it cannot be relitigated except under very limited...
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Hopkins v. Hopkins
...(2012).8 See 2 McCormick on Evidence § 344 (Kenneth S. Broun et al. eds., 7th ed. 2013).9 See id. , § 343.10 See, Alisha C. v. Jeremy C. , 283 Neb. 340, 808 N.W.2d 875 (2012) ; 2 McCormick on Evidence, supra note 8, § 343.11 § 43–2933(1)(b) (emphasis supplied).12 § 43–2933(3).13 See Potter ......
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