Lancaster v. Brenneis
| Decision Date | 15 January 1988 |
| Docket Number | No. 85-999,85-999 |
| Citation | 417 N.W.2d 767,227 Neb. 371 |
| Parties | Pamela K. LANCASTER, Appellee, v. Larry L. BRENNEIS, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Paternity: Child Custody: Visitation. In filiation proceedings, questions concerning custody and visitation of a child are resolved on the basis of the best interests of the child.
2. Paternity: Child Support. Child support in a filiation proceeding is initially left to the sound discretion of the trial judge.
3. Paternity: Child Custody: Visitation: Child Support: Appeal and Error. Concerning questions about custody and visitation of a child as well as child support in filiation proceedings, the Supreme Court's review of a trial court's judgment is de novo on the record to determine whether there has been an abuse of discretion by the trial judge, 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 Supreme Court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.
4. Paternity: Names. Under Neb.Rev.Stat. § 71-640.01(3) (Reissue 1986), a court, exercising jurisdiction in a filiation proceeding, has the discretionary power to decide whether a child's surname shall be changed from the legal surname of the child's mother to the surname of the child's father. In a filiation proceeding, a court, in deciding whether a child's surname should be changed from the mother's surname to the father's surname, must consider the best interests of the child regarding a change of name.
5. Paternity: Names: Proof. To obtain a change in the surname of a child involved in a filiation proceeding, the proponent of the change in surname has the burden to prove that the change in surname is in the child's best interests.
Paul Korslund of Everson, Wullschleger, Sutter, Sharp, Korslund & Willet, Beatrice, for appellant.
Dennis A. Winkle, Beatrice, for appellee.
Pamela K. Lancaster, formerly Pamela Zimmerman, commenced a filiation proceeding against Larry L. Brenneis, pursuant to the provisions of Neb.Rev.Stat. §§ 43-1401 to 43-1418 (Reissue 1984). The district court for Gage County entered judgment that Brenneis is the father of Pamela's child, ordered child support and visitation by Brenneis, and denied Brenneis' request that the child's surname be changed to "Brenneis."
Pamela Zimmerman gave birth to her daughter, Heather Michele Zimmerman, on August 19, 1983, and was unmarried at the time of Heather's birth. On November 7, 1984, Pamela filed a complaint, seeking adjudication that Brenneis was the father of her child Heather and a judgment for Brenneis' payment of maternity expenses and child support pertaining to Heather. In his response to Pamela's complaint, Brenneis admitted that he was Heather's father, sought visitation rights concerning Heather, and requested that Heather's surname be changed from "Zimmerman" to "Brenneis."
Pamela and Brenneis were engaged, but their marriage plans failed. As a result of this relationship, Pamela became pregnant. Brenneis' only financial support to Pamela during her pregnancy and after Heather's birth was $200 sent anonymously to Pamela. On March 11, 1984, Pamela married Ronald G. Lancaster, with whom Pamela and Heather were living at the time of trial. Brenneis testified that, in the 2 years since Heather's birth, none of his visits with the child had lasted a day or been overnight visitation. Brenneis categorically admitted that he has "never" even held Heather. Brenneis asked the court to change Heather's surname from "Zimmerman" to "Brenneis," but, outside the admission of paternity, offered nothing to support his request for the name change. Pamela opposed the change of Heather's surname.
Extensive evidence related to the incomes of the parties, Brenneis' property situation, expenses on account of Pamela's pregnancy with Heather, postnatal expenses, insurance coverage, and specific living expenses in raising Heather. After evidence was concluded and this matter was taken under advisement, the district court entered its judgment that Brenneis is Heather's father and ordered that Brenneis pay Pamela's maternity expenses, provide medical insurance for Heather, pay monthly child support, and have specifically scheduled visitation regarding Heather, whose custody was placed with Pamela. The district court then denied the change in Heather's surname requested by Brenneis.
Brenneis contends that the district court has ordered excessive child support, unduly restricted visitation of Heather, and improperly refused Brenneis' request for the change of Heather's surname.
In filiation proceedings, questions concerning custody and visitation of a child are resolved on the basis of the best interests of the child. See, Cox v. Hendricks, 208 Neb. 23, 302 N.W.2d 35 (1981); State ex rel. Ross v. Jacobs, 222 Neb. 380, 383 N.W.2d 791 (1986).
Section 43-1402 in part provides: "The father of a child whose paternity is established either by judicial proceedings or by acknowledgment as hereinafter provided shall be liable for its support." A request for child support in a filiation proceeding is characterized as "an equitable proceeding for the support of the child" with trial "the same as in actions formerly cognizable in equity." § 43-1406.
In proceedings to dissolve a marriage involving a question about child support, the amount of child support is initially left to the sound discretion of the trial judge. Lainson v. Lainson, 219 Neb. 170, 362 N.W.2d 53 (1985). This court has considered a proceeding to dissolve a marriage as an analog in formulating some principles applicable to a filiation proceeding. See, Cox v. Hendricks, supra; State ex rel. Ross v. Jacobs, supra. As a result of § 43-1402, child support in a filiation proceeding is initially left to the sound discretion of the trial judge. Cf. Riederer v. Siciunas, 193 Neb. 580, 228 N.W.2d 283 (1975) ( Neb.Rev.Stat. § 13-102 (Reissue 1974), the statutory predecessor of § 43-1402). Consequently, concerning questions about custody and visitation of a child as well as child support in filiation proceedings, the Supreme Court's review of a trial court's judgment is de novo on the record to determine whether there has been an abuse of discretion by the trial judge, 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 Supreme Court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Cf. Gerber v. Gerber, 225 Neb. 611, 407 N.W.2d 497 (1987).
A lengthy factual narrative is unnecessary in the present appeal. While the parties have presented evidence relative to their respective claims and positions regarding child support for and visitation of Heather, our review of the record discloses no peculiar question of fact or novel point of law...
To continue reading
Request your trial
-
State ex rel. Grape v. Zach
...must ultimately be resolved on the basis of the fitness of the parents and the best interests of the child, see Lancaster v. Brenneis, 227 Neb. 371, 417 N.W.2d 767 (1988). Provided the evidence is such as to support a finding that entry of the order was in the boy's best interests, neither ......
-
State on Behalf of J.R. v. Mendoza
...paternity suit issues of custody and visitation fall within the general equity jurisdiction of the district court); Lancaster v. Brenneis, 227 Neb. 371, 417 N.W.2d 767 (1988) (a court exercising jurisdiction in a filiation proceeding has the discretion to change the child's surname from tha......
- Chicago Lumber Co. of Omaha v. School Dist. No. 71 of Milligan, Fillmore County
-
State on Behalf of Hopkins v. Batt
...an abuse of discretion by the trial judge, whose judgment will be upheld in the absence of an abuse of discretion. Lancaster v. Brenneis, 227 Neb. 371, 417 N.W.2d 767 (1988). In such de novo review, when the evidence is in conflict, the appellate court considers, and may give weight to, the......