Quintela v. Quintela
| Decision Date | 27 February 1996 |
| Docket Number | No. A-95-086,A-95-086 |
| Citation | 544 N.W.2d 111,4 Neb.App. 396 |
| Parties | Dianna L. QUINTELA, Appellee, v. Pedro I. QUINTELA, Appellant. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Statutes: Presumptions. Absent a demonstration of foreign law, Nebraska courts presume the common law and statutory law of other jurisdictions to be the same as the law of Nebraska.
2. Paternity: Presumptions. In Nebraska, a child born during wedlock is presumed to be the legitimate offspring of the married parties.
3. Paternity: Presumptions: Proof. The presumption of legitimacy is not an irrebuttable presumption, and it may be rebutted by clear, satisfactory, and convincing evidence.
4. Parent and Child. In the absence of a biological or adoptive relationship between a husband and his wife's child, certain rights and responsibilities may arise where a husband elects to stand in loco parentis to his wife's child.
5. Paternity. The Nebraska paternity statutes provide that paternity may be established by acknowledgment.
6. Paternity: Child Support. If paternity is established by acknowledgment, a man is liable for support in the same manner as if the child had been born in lawful wedlock.
7. Paternity. As of July 1, 1994, an alleged father can be found to have acknowledged paternity only if he executes a notarized writing indicating that he considers himself to be the father.
8. Due Process: Notice. To comply with the requirements of procedural due process, a person whose rights are to be affected by proceedings must be provided with notice reasonably calculated to inform the person concerning the subject and issues involved in the proceeding.
9. Due Process. The requirements of due process mandate that the individual be given a reasonable opportunity to refute or defend against the charge or accusation, a reasonable opportunity to confront and cross-examine adverse witnesses, and a reasonable opportunity to present evidence on the charge or accusation.
10. Paternity: Child Support: Estoppel. The Nebraska Supreme Court has never used paternity by estoppel to impose a support obligation on someone who is not the biological father of his ex-wife's child.
11. Paternity: Estoppel. The doctrine of paternity by estoppel involves the application of established principles of equitable estoppel.
Appeal from the District Court for Sarpy County; Ronald E. Reagan, Judge. Reversed and remanded for further proceedings.
Karen L. Vervaecke, Omaha, for appellant.
No appearance for appellee.
Pedro I. Quintela appeals from a divorce decree which ordered him to pay child support for a minor child born during the parties' marriage but who paternity tests establish is not his biological child. We find that Pedro was not provided with a full and fair hearing on the issue of paternity, and we therefore reverse, and remand for further proceedings.
The bill of exceptions in this case is 11 pages long and reveals the following facts:
Dianna L. Quintela and Pedro I. Quintela were married on June 21, 1986, in Jackson County, Mississippi. Both parties were in the Navy at the time. After their marriage, Pedro's ship was sent to Scotland, and Dianna moved to Virginia Beach, Virginia. Pedro returned to Virginia in 1987 and resumed living with Dianna.
Joshua Quintela was born on January 12, 1991. Dianna testified that the parties stopped living together in mid-1991. In December 1992, Dianna and Joshua moved to Nebraska.
On October 13, 1993, Dianna filed a petition for legal separation and alleged that Pedro was Joshua's father. On January 5, 1994, Dianna amended her filing to a petition for dissolution and again alleged that Pedro was Joshua's father. Pedro filed an answer and cross-petition on March 11, denied that he was Joshua's father, and requested a blood test to determine paternity. On March 21, Dianna filed a reply and affirmatively alleged that Pedro was Joshua's father.
According to the court's docket sheet, the matter was set for trial on October 6, 1994, on the court's own motion. The bill of exceptions reflects that when the matter was called by the court on October 6, the following colloquy ensued:
THE COURT: Court is considering Quintela v. Quintela at Docket 9369, Page 1396. Petitioner is present with counsel. Respondent present by counsel. Is this resolved?
MS. WAGEMAN [Dianna's counsel]: Yes, it is. Only thing we are going to do is prove up on it. We still have to send the decree down to the respondent.
Dianna appeared with her counsel, and Pedro's counsel appeared. Although a guardian ad litem had been appointed to represent Joshua's interests, the guardian was not present at trial. It is uncontroverted that the parties believed they had resolved the issues prior to trial, and Dianna appeared merely to "prove up" the petition. In fact, regarding issues surrounding the child, Dianna's counsel questioned her as follows:
Q The respondent has denied that he is the biological father of this child?
A Right.
Q You and the respondent and your child voluntarily underwent paternity testing; correct?
A Right.
Q The results of that test indicated that in fact the respondent is not the biological father.
A Right.
Q So you understand today that the Court is not making any findings regarding issues of child custody between you and the respondent?
A Yes.
Pedro's counsel questioned Dianna as follows:
The results of the paternity test were received by the court. The test indicated that there was a "0.0" percent chance that Pedro was Joshua's father. According to the test results, Pedro "lack[ed] the genetic markers that must be contributed to [Joshua] by the biological father," and Pedro was thus "excluded as the biological father of [Joshua]." According to Dianna's testimony, the parties all agreed that Pedro is not Joshua's father.
After the petition had been proven by examination of Dianna, the court examined Dianna regarding the relationship between Pedro and Joshua. Dianna testified that she had thought someone other than Pedro was Joshua's father when she was pregnant. Dianna further testified that she informed Pedro he was not Joshua's father, although she did not testify as to when she so informed him. Dianna testified that she knew the biological father's name, although she never maintained a paternity action against him and testified that she did not know where he was at the time of trial.
Dianna testified that she had furnished the hospital Pedro's name as the father, although she knew Pedro was not the father. She also testified that Pedro had treated Joshua as his child "[u]ntil right after Josh's first birthday when [the parties] split up." Pedro had stopped visiting Joshua after Dianna and Joshua moved to Nebraska, although Dianna testified that Pedro had called and sent birthday cards to Joshua. Dianna testified that Pedro had sent support for her and Joshua until February 1994.
During the trial, the court expressed concern over Joshua's best interests. The court suggested that Pedro should be obligated to support Joshua despite the paternity test results. On December 21, 1994, the court entered a decree of dissolution. The court found that Pedro "has acknowledged paternity of [Joshua] and therefore ... both parties are estopped from denying paternity of [Joshua] and [Joshua] is a child born from the marriage" of Pedro and Dianna. The court ordered Pedro to pay $335 in child support per month. On October 19, Pedro had filed a "Motion to Hear Additional Evidence" with a supporting affidavit of counsel which stated that it was counsel's understanding that no trial had been necessary because matters had been resolved between the parties. This motion was denied. A motion for new trial was also filed. This was also denied by the court. This appeal followed.
In this appeal, Pedro assigns three errors, which we have consolidated for discussion to one: The district court erred in determining paternity and ordering Pedro to pay child support for a minor child who is not his biological offspring.
In actions for dissolution of marriage, an appellate court reviews the case 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. Jirkovsky v. Jirkovsky, 247 Neb. 141, 525 N.W.2d 615 (1995).
This case presents us with the question of whether a husband has a legal duty to support a child born during the course of the marriage when paternity tests conclusively demonstrate that he is not the child's biological father.
We note at the outset that there was a potential conflict-of-laws problem in this case. Joshua was born and lived together with Pedro and Dianna for a period of time in Virginia. Some of the actions upon which the trial court appears to have based Pedro's support obligation occurred in Virginia. At the time of trial, Pedro was a resident of Texas, and Dianna and Joshua were residents of Nebraska. Although any of these three states may have had an interest in having its law applied to this case, the parties did not raise at trial and do not raise on appeal the issue of which state's law should apply. It appears that Nebraska has the most significant relationship to the case and, correspondingly, the most significant interest in having its law applied to the case. See Restatement (Second) of Conflict of Laws §§ 6 and 287 (1971). However, even if Virginia or Texas law was deemed to control the case, no presentation was made to the trial court concerning what Virginia or Texas law is on the subject of paternity. Under such circumstances, we presume the common law and statutory law of other jurisdictions...
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...from denying paternity after acknowledging and holding son out as his own for almost seven years); but see Quintela v. Quintela, 4 Neb.App. 396, 544 N.W.2d 111 (Neb.App.1996) (father, who shared household with non-biological child for less than one year, not equitably estopped from denying ......
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