Perkins v. Perkins, 40973

• Decision Date: 27 April 1977
• Docket Number: No. 40973,40973
• Citation: 253 N.W.2d 42,198 Neb. 401
• Parties: Jimmy D. PERKINS, Appellant, v. Stella L. PERKINS, Appellee.
• Court: Nebraska Supreme Court

Page 42

253 N.W.2d 42

198 Neb. 401

Jimmy D. PERKINS, Appellant, v. Stella L. PERKINS, Appellee.

No. 40973.

Supreme Court of Nebraska.

April 27, 1977.

Syllabus by the Court

1. We interpret section 42-364, R.S.Supp., 1976, to authorize the court to make subsequent changes in the decree to cover children conceived during a marriage but born after the divorce.

2. Legitimacy of children born during wedlock is presumed and this presumption may be rebutted only by clear, satisfactory, and convincing evidence and the testimony or declaration of a husband or wife is not competent to bastardize a child born during wedlock.

Cronin, Shamberg & Wolf, Grand Island, for appellant.

John Story, Deputy County Atty., Grand Island, for appellee.

Heard before WHITE, C. J., SPENCER, BOSLAUGH, McCOWN, BRODKEY and WHITE, JJ., and KUNS, Retired District Judge.

SPENCER, Justice.

This appeal is from an order entered on a motion to modify a dissolution of marriage decree finding a child of the parties was born after the dissolution of the marriage, and fixing child support. The modification was granted after term time. The trial court found that Stella L. Perkins, the respondent, was pregnant at the time of the decree; that the petitioner, Jimmy D. Perkins, is the father of Jimmy J. Perkins, born subsequent to the decree; and ordered Jimmy D. Perkins to pay the sum of $60 per month as child support. Jimmy prosecutes this appeal, attacking the jurisdiction of the court to enter the decree. We affirm, but for a different reason than that given by the trial court.

Jimmy filed suit for dissolution of the marriage on August 6, 1974. On August 7, Stella's voluntary appearance was filed. This appearance was witnessed by Jimmy's attorney. The marriage was dissolved on November 13, 1974. Stella was not represented by counsel, did not appear in court, and her default was entered. A property settlement, prepared by Jimmy's attorney, which made no mention of the child Stella was then carrying, was approved by the court. At the time of the dissolution of the marriage, Stella was a little over 4 months pregnant. She had been living with Jimmy at the time of conception. The child was born March 24, 1975, 4 months and 11 days after the decree was signed.

The motion to modify was filed December 10, 1975, after the term at which the dissolution was decreed. On March 24, 1976, pursuant to agreement, the cause was set for hearing on May 14, 1976. On that day, Jimmy moved for dismissal on the grounds that the decree had become final and the time for appeal had gone by. This motion was overruled.

The trial court stated default dissolution hearings in his court are not reported where the petition contains an allegation of no children. The trial court further stated that his notes indicated the petitioner, Jimmy, testified there were no children born of the marriage. The court ruled that whether or not the plaintiff misled the court or may have made a fraudulent statement gave a court of equity an opportunity to reopen the case after term and he did so.

After hearing, the court determined that under section 25-2001, R.R.S.1943, for irregularity in the proceeding and also under general equity powers, the relief requested by Stella should be granted.

The only issue discussed in appellant's brief is the authority of the court to modify the decree after term time. Section 42-364, R.S.Supp., 1976, provides in part as follows: "When dissolution of a marriage or legal separation is decreed, the court may include such orders in relation to any minor children and their maintenance as shall be justified, including placing the minor children in court custody if their welfare so...