DeVaux v. DeVaux

• Decision Date: 15 April 1994
• Docket Number: No. S-92-234,S-92-234
• Citation: 245 Neb. 611,514 N.W.2d 640
• Parties: Erin Colleen DeVAUX, Appellee, v. Richard Arlen DeVAUX II, Appellant.
• Court: Nebraska Supreme Court

Page 640

514 N.W.2d 640

245 Neb. 611

Erin Colleen DeVAUX, Appellee, v. Richard Arlen DeVAUX II, Appellant.

No. S-92-234.

Supreme Court of Nebraska.

April 15, 1994.

Syllabus by the Court

1. Demurrer: Pleadings. In considering a demurrer, a court must assume that the pleaded facts, as distinguished from the legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inferences from the facts alleged; however, a court cannot assume the existence of facts not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial.

2. Res Judicata. The doctrine of res judicata rests on the necessity to terminate litigation and on the belief that a person should not be vexed twice for the same cause.

3. Res Judicata: Judgments. Res judicata 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.

4. Res Judicata: Demurrer: Pleadings. Res judicata may be raised in a demurrer when the pleading challenged by the demurrer sets forth the facts to which the rule of res judicata applies.

5. Child Support: Paternity. A fundamental fact necessary to sustain an order of child support is paternity by the man judicially obligated to pay such support.

6. Divorce: Courts: Jurisdiction: Paternity: Child Support. The district courts of Nebraska have jurisdiction to enter dissolution decrees. In entering such decrees, the district courts also have jurisdiction to determine whether the husband is the father of any minor children to be supported as a result of the dissolution proceedings.

7. Divorce: Time. During the 6-month period following rendition of a dissolution decree, the control of the decree rests within the discretion of the trial court.

8. Divorce: Paternity: Judgments. A paternity determination in a dissolution decree is a final judgment.

9. Divorce: Paternity: Res Judicata. Under the doctrine of res judicata, a finding of paternity in a dissolution decree precludes the parties to the decree from relitigating paternity.

10. Judgments: Equity: Time. A litigant seeking the vacation or modification of a prior judgment after term may take one of two routes. The litigant may proceed either under Neb.Rev.Stat. § 25-2001 (Reissue 1989) or under the district court's independent equity jurisdiction.

11. Motions for New Trial: Evidence: Proof. In order to make a sufficient showing for a new trial on the grounds of newly discovered evidence, the proof in support thereof must show that such evidence is now available which neither the litigant nor counsel could have discovered by the exercise of reasonable diligence and that the evidence is not merely cumulative, but competent, relevant, and material, and of such character as to reasonably justify a belief that its admission would bring about a different result if a new trial were granted.

12. Motions for New Trial: Evidence. Newly discovered evidence is not grounds for a motion for new trial where the exercise of reasonable diligence would have produced the evidence.

13. Motions for New Trial: Evidence: Time. A motion for new trial on the grounds of newly discovered evidence must allege that the evidence could not have been discovered during term with the exercise of reasonable diligence.

14. Demurrer: Pleadings. Following the sustaining of a demurrer, the losing party is entitled to amend the pleadings unless there exists no reasonable possibility that amendment will remedy the deficiency.

15. Motions for New Trial: Evidence: Words and Phrases. For purposes of a motion for new trial on the basis of newly discovered evidence, "reasonable diligence" means appropriate action where there is some reason to awaken inquiry and direct diligence in a channel in which it will be successful.

16. Modification of Decree: Attorney Fees. In a proceeding to modify a dissolution decree, the decision to award attorney fees rests within the trial court's discretion.

17. Attorney Fees: Appeal and Error. On appeal, a trial court's decision awarding or denying attorney fees will be upheld absent an abuse of discretion.

Robert J. Hovey, P.C., of Law Offices of Sanders & Hovey, P.C., Bellevue, for appellant.

Jerome J. Ortman, Omaha, for appellee.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, FAHRNBRUCH, and LANPHIER, JJ., and GRANT, J., Retired.

WHITE, Justice.

Erin Colleen Zaback (Zaback), formerly known as Erin Colleen DeVaux, filed an application to modify her dissolution decree to reflect that her former husband, Richard Arlen DeVaux II (DeVaux), was not the father of her minor child. The district court granted the modification, and the former husband appealed to the Nebraska Court of Appeals. Under our authority to regulate the caseload of the appellate courts of this state, we removed the matter to this court. We reverse in part, affirm in part, and remand the cause with directions.

On February 14, 1979, Zaback and DeVaux married. On December 9, 1986, a child was born. On December 12, 1988, Zaback filed for dissolution of the marriage. On March 17, 1989, the district court entered its decree of dissolution. In entering the decree, the district court found that the minor child was the only issue born to the marriage. The court awarded Zaback custody of the minor child, subject to DeVaux's reasonable visitation rights. The court ordered DeVaux to pay monthly child support.

On November 13, 1990, Zaback filed an application to modify the decree. In the application, Zaback alleged that she had discovered, through the administration of blood tests, that DeVaux was not the natural father of the minor child. Zaback requested that the court modify the decree by "specifically finding that [DeVaux] is not the father of the minor child of the parties" and by terminating the child support and visitation provisions of the decree.

DeVaux demurred to this application, alleging, among other things, that the minor child's paternity was res judicata. The trial court overruled the demurrer. DeVaux then filed an answer alleging "unclean hands," repeating the claim of res judicata, and requesting attorney fees.

On March 26, 1991, the district court, on its own motion, held a hearing. Zaback admitted that during her marriage to DeVaux she had sexual relations with her current husband, Terry Lee Zaback. Zaback also admitted that she had not informed DeVaux of her extramarital sexual relations until after the dissolution decree had been entered. According to her testimony, Zaback first questioned the minor child's paternity in the summer of 1990, when she met Terry Lee Zaback's family and noticed the family's strong resemblance to her child. Subsequent blood tests established a 98.4 percent likelihood that Terry Lee Zaback was the father of the minor child. At the close of the hearing, the court ordered additional testing to determine whether DeVaux could be the father of the minor child.

On January 2, 1992, the test results were furnished to the court, although they were not admitted into evidence. The court granted a continuance for trial and appointed a guardian ad litem for the minor child.

On February 20, the court held a trial on the application to modify. The court first invited Terry Lee Zaback to intervene in the action, and he intervened pro se. The parties then stipulated to the results of the blood tests, which established that DeVaux was "excluded from being the biological father of the child[.]" The court then heard additional testimony from all three parties. All three agreed that the minor child has a substantial, beneficial relationship with DeVaux.

The district court found that Terry Lee Zaback was the natural father of the minor child. The court terminated DeVaux's support obligation and his visitation rights; however, the court allowed for temporary visitation pending its receipt of a report by the guardian ad litem. (The court later extended the temporary visitation to include the pendency of this appeal.) The court ordered Zaback to repay DeVaux the child support payments she had received from December 1, 1990, through January 30, 1992. Finally, the court ordered each party to pay his or her own attorney fees and costs.

DeVaux appealed. DeVaux asserts, in summary, that the trial court erred (1) in overruling the demurrer; (2) in allowing Terry Lee Zaback to intervene; (3) in finding that Terry Lee Zaback was the father of the minor child; (4) in denying DeVaux the opportunity to testify regarding his relationship with the minor child; (5) in ordering Zaback to return only a portion of the child support payments she had received; and (6) in failing to award DeVaux attorney fees and costs.

DeVaux first asserts that the trial court erred in overruling his demurrer. DeVaux argues that the demurrer should have been sustained because the minor child's paternity was res judicata by virtue of the dissolution decree. This argument presents us with this question: Under the doctrine of res judicata, does a finding of paternity in a dissolution decree prevent the parties to the decree from relitigating paternity? We answer this question: Yes.

In considering a demurrer, a court must assume that the pleaded facts, as distinguished from the legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inferences from the facts alleged; however, a court cannot assume the existence of facts not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial. Wheeler v. Nebraska State Bar Assn., 244 Neb. 786, 508 N.W.2d 917 (1993); St. Paul Fire & Marine Ins. Co. v. Touche Ross & Co., 244 Neb. 408, 507 N.W.2d 275 (1993); Gallion v. Woytassek, ...