Cesar C. v. Alicia L.

• Decision Date: 22 July 2011
• Docket Number: No. S–10–924.,S–10–924.
• Citation: Cesar C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (Neb. 2011)
• Parties: CESAR C., appellant and cross-appellee,v.ALICIA L., appellee and cross-appellant.
• Court: Nebraska Supreme Court

281 Neb. 979

800 N.W.2d 249

CESAR C., appellant and cross-appellee,

v.ALICIA L., appellee and cross-appellant.

No. S–10–924.

Supreme Court of Nebraska.

July 22, 2011.

Syllabus by the Court

1.Paternity: Appeal and Error.In a filiation proceeding, questions concerning child custody determinations are reviewed on appeal de novo on the record to determine whether there has been an abuse of discretion by the trial court, 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 court heard and observed the witnesses and accepted one version of the facts rather than another.

2.Judgments: Statutes: Appeal and Error.Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the trial court.

3.Appeal and Error.Although an appellate court ordinarily considers only those errors assigned and discussed in the briefs, the appellate court may, at its option, notice plain error.

[800 N.W.2d 251 , 281 Neb. 980]

4.Appeal and Error.Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

5.Paternity: Words and Phrases.The provision in Neb.Rev.Stat. § 43–1409(Reissue 2008) that the acknowledgment of paternity is a “legal finding” means that it legally establishes paternity in the person named in the acknowledgment as the father.

Jeffrey M. Wightman, Lexington and Jesus A. Tena, Jr., of Wightman & Wightman, for appellant.Bradley D. Holbrook and David H. Kalisek, of Jacobsen, Orr, Nelson, Lindstrom & Holbrook, P.C., L.L.O., Kearney, for appellee.HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.MILLER–LERMAN, J.

NATURE OF CASE

The district court for Dawson County awarded Alicia L. custody of Jaime C. based on its application of the parental preference doctrine.Cesar C. appeals and assigns various errors, and Alicia cross-appeals.We conclude that the district court erred when it failed to give proper legal effect to a notarized acknowledgment of paternity signed by Cesar and Alicia at the time of Jaime's birth.In the absence of a successful challenge directed at the acknowledgment, the acknowledgment had the effect of establishing that Cesar was the legal father of Jaime and matters of custody and child support should have been considered within this legal framework.We therefore reverse the decision of the district court and remand the cause for further proceedings.

STATEMENT OF FACTS

Cesar and Alicia lived together and had an intimate relationship between 2004 and 2006.During that time, Alicia became pregnant.Cesar and Alicia are not married.

Alicia gave birth to Jaime in 2006, and Cesar was present at the birth.On the day after Jaime's birth, Cesar and Alicia both signed a form provided by the Nebraska Department of Health and Human Services titled “Acknowledgement of Paternity,” in which both Cesar and Alicia acknowledged that Cesar was Jaime's biological father.Their signatures were notarized.Cesar was named as the father on the birth certificate.

When Alicia and Jaime left the hospital, they returned to a home Cesar and Alicia had rented in Lexington, Nebraska.Shortly thereafter, Alicia learned that there was an outstanding federal warrant for her arrest for conspiracy to deliver methamphetamine.Without notifying Cesar, Alicia fled Lexington and left Jaime with Cesar.Alicia was arrested in Colorado on October 5, 2006, and was later convicted and sentenced to imprisonment in a federal facility in Texas.She was in federal custody until August 2008, when she was released to a halfway house in Omaha, Nebraska, where she lived until she moved into a house in February 2009.After arriving in Omaha, Alicia resumed contact with Cesar and Jaime, who for the last 2 years had been living together in Lexington.The relationship between Cesar and Alicia did not resume.

On June 8, 2009, Cesar filed a complaint in the district court for Dawson County to establish paternity, custody, and child support with respect to Jaime.Cesar asserted that at all times, Jaime had been in his physical care, custody, and control and that they had lived in Lexington Jaime's entire life.Cesar sought an order declaring him to be Jaime's father, granting him custody of Jaime, and ordering Alicia to pay child support.Cesar also filed a motion for temporary custody; in an affidavit in support of the motion, he asserted that on June 7, Alicia had taken Jaime to Omaha without Cesar's knowledge or consent.The court granted Cesar's motion for temporary custody of Jaime.

Although on June 9, 2009, Alicia filed a separate action in the district court for Douglas County in which she asserted that Cesar was Jaime's father, she answered Cesar's complaint in this case with a counter-complaint for custody and child support in which she asserted that Cesar was “potentially” Jaime's father.In a separate motion, Alicia asserted that it was possible that Cesar was not Jaime's biological father and she requested that the court order Cesar to submit to genetic testing to determine paternity.The court granted the request.After the genetic testing excluded Cesar as being Jaime's biological father, Alicia filed a motion for summary judgment and motions to, inter alia, grant her temporary custody of Jaime and vacate the order directing her to pay child support.

Cesar filed a motion for leave to file an amended complaint which alleged that immediately after Jaime's birth, he asked Alicia whether he was Jaime's father; that Alicia told Cesar that he was Jaime's father; and that at no time since, until the present action, had Alicia indicated to Cesar that he was not Jaime's father.Cesar also alleged that Alicia was unfit to have custody of Jaime for various reasons including, inter alia, her involvement with drugs, her conviction “for one or more federal felonies,” and her abandonment of Jaime.Cesar further alleged that he was an “ ‘equitable parent’ ” to Jaime, that Alicia should be equitably estopped from denying his paternity, and that he had acted in loco parentis to Jaime.

The district court granted Cesar leave to file the amended complaint.The court overruled Alicia's motion for summary judgment and other motions after it determined that there were genuine issues of material fact relating to the claims raised by Cesar in his amended complaint and that there was legal authority to support Cesar's claims that he had the rights of a parent.Alicia answered Cesar's amended complaint by alleging, inter alia, that Cesar was unfit to have custody of Jaime.

At a final hearing on all pending matters in this case, Cesar offered into evidence the notarized acknowledgment of paternity signed by Cesar and Alicia at Jaime's birth.Without objection by Alicia, the court received the acknowledgment into evidence.Following the hearing, the court entered an order on August 19, 2010, ruling on both parties' various claims.The court first determined that Cesar had proved by clear and convincing evidence each of the elements of equitable estoppel.In making such determination, the court found as an incidental matter that the acknowledgment of paternity had been signed; however, the court did not consider the legal effect of the acknowledgment.The court concluded that Cesar could use the doctrine of equitable estoppel to prevent Alicia from terminating the relationship between Cesar and Jaime.

In its order, the court noted that genetic testing excluded Cesar as being Jaime's biological father.The court therefore applied the parental preference doctrine and concluded that Alicia, as the biological parent of Jaime, had the superior right to custody unless such custody would be detrimental to Jaime's welfare.The court found that Cesar failed to establish that Alicia was unfit to parent Jaime or that she had forfeited her parental rights by substantial, continuous, and repeated neglect of Jaime.The court awarded custody of Jaime to Alicia.

Despite its conclusion that Cesar had not rebutted the presumption of custody in Alicia, the court found that Cesar had established that his relationship with Jaime was protected by the in loco parentis doctrine and that therefore, Cesar was entitled to parenting time with Jaime.The court found that Cesar should have “extensive and liberal parenting time” with Jaime and set forth a parenting plan to provide such time.Finally, the court determined that because Cesar stood in loco parentis to Jaime, he had an obligation to support Jaime; the court therefore ordered Cesar to pay monthly child support.

Cesar filed a motion for a new trial or to reconsider or modify the August 19, 2010, order.The court granted a new trial limited to a specific evidentiary issue.Cesar noted that at the prior hearing, the court did not explicitly rule on Alicia's offering into evidence the results of the genetic testing that excluded Cesar as Jaime's biological father.When Alicia again offered the evidence at the new trial, Cesar objected.Cesar argued that based on equitable estoppel, Alicia should not be allowed to present evidence that he was not Jaime's biological father.The court overruled Cesar's objection, stating that equitable estoppel did not prevent admission of the evidence.In an order entered September 16, the court concluded that admission of the evidence did not change the findings and conclusions it had reached in its August 19 order.

Cesar appeals the August 19 and September 16, 2010, orders.Alicia cross-appeals.

ASSIGNMENTS OF ERROR

In his appeal, Cesar claims that the district court erred when it (1) found that Alicia was not equitably estopped from offering the...