Bryan M. v. Anne B.

Decision Date12 February 2016
Docket NumberNo. S–15–075.,S–15–075.
Citation292 Neb. 725,874 N.W.2d 824
Parties Bryan M., Appellant, v. Anne B., Appellee, and Adam B., Intervenor–Appellee.
CourtNebraska Supreme Court

John A. Kinney, Omaha, and Jill M. Mason, of Kinney Law, P.C., L.L.O., for Appellant.

Adam E. Astley, of Slowiaczek, Albers & Astley, P.C., L.L.O., for Appellee.

Julie E. Bear, of Reinsch, Slattery, Bear & Minahan, P.C., L.L.O., Plattsmouth, for Intervenor-appellee.

Heavican, C.J., Wright, Connolly, Miller–Lerman, Cassel, and Stacy, JJ.

Wright, J.

I. NATURE OF CASE

This is an appeal from the dismissal of a paternity action pursuant to Neb. Rev. Stat. § 43–1411 (Reissue 2008). The biological father brought a paternity action on behalf of himself and as the "next friend" of the minor child. He sought a declaration of paternity and custody of the child, who was born 8 years before the action was filed. He claimed that the statute of limitations barring paternity actions after 4 years should be tolled by the doctrines of fraud and equitable estoppel based on misrepresentations of the mother that he was not the father. He asserts that our holding in Doak v. Milbauer, 216 Neb. 331, 343 N.W.2d 751 (1984), permits him to bring the action as the next friend of the child. And he claims that § 43–1411 is unconstitutional under the Due Process and Equal Protection Clauses of the state and federal Constitutions.

For the reasons stated below, we affirm the order of the district court.

II. SCOPE OF REVIEW

A claim of equitable estoppel rests in equity, and in an appeal of an equity action, an appellate court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court. Olsen v. Olsen, 265 Neb. 299, 657 N.W.2d 1 (2003). Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court's determination. Flores v. Flores–Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015). The constitutionality of a statute is a question of law which we review independently of the lower court's determination. See Big John's Billiards v. State, 288 Neb. 938, 852 N.W.2d 727 (2014).

III. FACTS

Appellee, Anne B., and intervenor, Adam B., have been married since May 1999. During the first 5 years of their marriage, Anne and Adam unsuccessfully attempted to conceive a child. Appellant, Bryan M., has been married to his wife for more than 25 years, and they have two children.

In the fall of 2003 until spring 2004, Anne and Bryan engaged in an extramarital affair in which they regularly engaged in sexual intercourse without contraception. During the affair, Anne continued to have regular sexual intercourse with both Bryan and her husband without using contraception. When Anne became pregnant, she broke off her relationship with Bryan. Bryan inquired several times whether he was the father of the child and was told that he was not. After the child, T.B., was born in 2004, Bryan again asked Anne whether he was the biological father. Again, he was told that he was not the father. Since T.B.'s birth in 2004, Adam has raised T.B. with the belief that he is T.B.'s father. Adam has served as T.B.'s father for T.B.'s entire life. Since T.B.'s birth, Bryan's contact with Anne and T.B. has been limited to occasional, unplanned meetings.

In 2012, Anne and Bryan resumed their extramarital affair. When the relationship resumed, Bryan requested a DNA test to determine whether he is T.B.'s biological father. A DNA test performed at an Omaha, Nebraska, medical center revealed a 99.9–percent chance that Bryan is T.B.'s biological father.

Bryan filed his initial complaint on September 17, 2013, seeking to establish paternity of T.B. and custody. His second amended complaint, as stated by the district court, asserted the following:

1. [Bryan] is bringing this action in his own capacity, and Nebraska's four-year Statute of Limitations [provided in § 43–1411 ] is unconstitutional;
2. [Bryan] is bringing this action in his own capacity, and the Statute of Limitations should be tolled [based on fraud/deception]; and
3. [Bryan] is bringing this action both in his individual capacity and "as someone informally acting in the best interest of T.B., but not formally his guardian." The action is also captioned "Bryan ..., on behalf of himself and as ‘next friend’ of T.B.["]

Bryan argued that the 4–year statute of limitations should be tolled because Anne told him that he was not the biological father.

The district court rejected Bryan's argument and found that the statute of limitations under § 43–1411 should not be tolled. The court found that Bryan had not been "deceived or hoodwinked into inactivity" by Anne, but simply failed to exercise his rights with due diligence. It found that Bryan originally did not want to be a parent to T.B., because he wanted to preserve his own marriage, and that he knew or should have known that it was impossible for Anne to know with certainty that he was not the father. It also granted Anne's motion to strike Bryan's claims brought as "the next friend" of T.B., because it was not alleged or shown that T.B. was without a guardian, since T.B. was currently living with his biological mother.

On Bryan's and Anne's renewed motions for partial summary judgment, the court found that § 43–1411 did not violate the Due Process Clauses of the U.S. and Nebraska Constitutions. The court found that the statute permitted sufficient time for parents to assert claims and that the government had a sufficient interest in preventing children from being removed from stable homes after a certain period of time. Moreover, it found that § 43–1411 did not violate Bryan's rights under the Equal Protection Clauses of the U.S. and Nebraska Constitutions. It rejected Bryan's arguments that § 43–1411 impermissibly discriminated against men as opposed to women and found that Bryan lacked the standing to bring the argument that the statute discriminated against children born out of wedlock. Bryan timely appealed.

IV. ASSIGNMENTS OF ERROR

Bryan assigns as error the trial court's finding (1) that Bryan could not file this action derivatively as T.B.'s next friend, (2) that Bryan did not meet his burden of proving equitable estoppel/fraud tolling of the statute of limitations found in § 43–1411, (3) that § 43–1411 is constitutional under the Equal Protection Clauses of the U.S. and Nebraska Constitutions, and (4) that § 43–1411 is constitutional under the Due Process Clauses of the U.S. and Nebraska Constitutions.

V. ANALYSIS

This appeal raises statutory, equitable, and constitutional issues associated with § 43–1411. We consider the statutory question first.

1. NEXT FRIEND ARGUMENT

Bryan claims that § 43–1411 permits him to bring this action as the "next friend" of T.B. to secure T.B.'s rights. Anne and Adam claim that Bryan may not bring an action as T.B.'s next friend, because he has not shown T.B. is without a guardian. We reject Bryan's claim.

An action to establish paternity is statutory in nature, and the authority for such action must be found in the statute and must be in accordance with the provisions thereof.

County of Hall ex rel. Wisely v. McDermott, 204 Neb. 589, 284 N.W.2d 287 (1979). See Bohaboj v. Rausch , 272 Neb. 394, 721 N.W.2d 655 (2006). Summarized in pertinent part, § 43–1411 provides that a paternity action may be instituted by (1) the mother or the alleged father of a 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.

Thus, a parent's right to initiate paternity actions under § 43–1411 is barred after 4 years, but actions brought by a guardian or next friend on behalf of children born out of wedlock may be brought within 18 years after the child's birth. In the context of a paternity action, a next friend is one who, in the absence of a guardian, acts for the benefit of an infant or minor child. See In re Adoption of Amea R., 282 Neb. 751, 807 N.W.2d 736 (2011). Actions brought by the next friend of the child are causes of action that seek to establish the child's rights rather than those of the parent. See State on behalf of Kayla T. v. Risinger, 273 Neb. 694, 731 N.W.2d 892 (2007) (quoting State on behalf of S.M. v. Oglesby, 244 Neb. 880, 510 N.W.2d 53 (1994) ). It is generally recognized that a next friend must have a significant relationship with the real party in interest, such that the next friend is an appropriate alter ego for the party who is not able to litigate in his or her own right. In re Adoption of Amea R., supra .

Bryan brings this action in his own behalf and as T.B.'s next friend. Since T.B. was in the custody of Anne and Adam, his biological mother and legal father, Bryan did not show that T.B. was without a guardian.

This is not the first time we have considered this type of issue. Zoucha v. Henn, 258 Neb. 611, 604 N.W.2d 828 (2000), involved an action for grandparent visitation rights wherein the grandmother of the minor child brought the action as the child's next friend. Since the minor child lived with his mother, we concluded there was no legal basis, reason, or cause for a "next friend" to institute a paternity action on the minor child's behalf. The mother and father were the natural guardians of the minor child. We concluded the court correctly dismissed the paternity action, because the grandmother did not dispute that the child lived with his mother.

Bryan relies upon Doak v. Milbauer, 216 Neb. 331, 343 N.W.2d 751 (1984). He claims that this court suggested that parents may use the "next friend" status as a basis for bringing a claim of paternity. In Doak, the mother filed a paternity action against the putative father in 1981 and requested that he be declared the father of a child born to her in 1972. The court dismissed the action. In reviewing the constitutionality of Neb. Rev. Stat. § 13–111 (Reissue 1977), the predecessor statute t...

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