State on Behalf of Hopkins v. Batt

Decision Date30 January 1998
Docket NumberNo. S-96-290,S-96-290
PartiesSTATE of Nebraska on Behalf of Keith I. HOPKINS, Jr., a minor child, Appellee, v. Chyrlyn K. BATT, Appellee, and Richard A. Filbert II, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Paternity: Appeal and Error. In a filiation proceeding, the appellate court reviews the trial court's judgment 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 appellate 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.

2. Paternity: Child Support: Appeal and Error. A trial court's award of child support in a paternity case will not be disturbed on appeal in the absence of an abuse of discretion. On questions of law, however, the appellate court has an independent obligation to reach the correct conclusion.

3. Standing: Words and Phrases. Standing is the legal or equitable right, title, or interest in the subject matter of the controversy which entitles a party to invoke the jurisdiction of the court. Because the requirement of standing is fundamental to a court's exercise of jurisdiction, a litigant or a court before which a case is pending can raise the question of standing at any time during the proceeding.

4. Paternity: Child Support. Pursuant to Neb.Rev.Stat. § 43-1411 (Cum.Supp.1994), the State, in its parens patriae role, may bring a paternity action on behalf of a minor child for future support.

5. Actions: Parties. Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in Neb.Rev.Stat. § 25-304 (Reissue 1995). Parties acting in a representative capacity, including executors, administrators, trustees, or a person expressly authorized by statute may bring an action without joining the person for whose benefit it is prosecuted.

6. Paternity: Child Support. A child born out of wedlock has a statutory right to receive support from its father, and a cause of action to enforce a parental duty to provide support belongs to the child.

7. 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.

8. Estoppel: Words and Phrases. Equitable estoppel is a bar which precludes a party from denying or asserting anything to the contrary of those matters established as the truth by his own deeds, acts, or representations.

9. Estoppel. The elements of equitable estoppel are, as to the party estopped, (1) conduct which amounts to a false representation or concealment of material facts or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons; and (3) knowledge, actual or constructive, of the real facts; and as to the other party, (4) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (5) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (6) action or inaction based thereon of such a character as to change the position or status of the party claiming the estoppel, to his injury, detriment, or prejudice.

10. Marriage: Paternity: Presumptions: Proof. Neb.Rev.Stat. § 42-377 (Reissue 1993) provides that children born to the parties, or to the wife, in a marriage relationship which may be dissolved or annulled pursuant to Neb.Rev.Stat. §§ 42-347 to 42-379 (Reissue 1993 & Cum.Supp.1994), shall be legitimate unless otherwise decreed by the court, and in every case the legitimacy of all children conceived before the commencement of the suit shall be presumed until the contrary is shown. This statutory presumption may be rebutted by clear, satisfactory, and convincing evidence.

11. Paternity: Presumptions. In a paternity action, the mother and the alleged father are competent to testify that a child's parentage is contrary to the presumption of legitimacy.

12. Marriage: Parent and Child. In the absence of a biological relationship between a husband and his wife's child, the husband may acquire certain rights and responsibilities when he elects to stand in loco parentis to the child.

13. Parent and Child: Intent: Proof: Words and Phrases. A person standing in loco parentis to a child is one who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation, without going through the formalities necessary to a legal adoption, and the rights, duties, and liabilities of such person are the same as those of the lawful parent. The assumption of the relation is a question of intention, which may be shown by the acts and declarations of the person alleged to stand in that relation.

14. Paternity. An acknowledgment of paternity by another person is not conclusive in an action to establish paternity in the biological father.

15. Paternity: Child Support. Child support in a paternity action is to be determined in the same manner as in cases of children born in lawful wedlock.

16. Child Support: Rules of the Supreme Court. In determining the amount of child support to be paid by a parent, the court must consider the earning capacity of each parent and apply the Nebraska Child Support Guidelines adopted by the Nebraska Supreme Court.

17. Child Support: Rules of the Supreme Court: Presumptions. The Nebraska Child Support Guidelines are applied as a rebuttable presumption, and all orders for child support shall be established in accordance with the provisions of the guidelines unless the court finds that one or both parties have produced sufficient evidence to rebut the presumption that the guidelines should be applied.

18. Child Support: Rules of the Supreme Court: Taxation. The Nebraska Child Support Guidelines contemplate that income for purposes of child support may differ from taxable income and do not prevent consideration of tax-exempt benefits in determining the amount of a parent's income derived from all sources.

19. Parent and Child: Child Support. A child's biological parent has the primary obligation of support.

Gregory Plank, of Hascall, Jungers, Garvey & Delaney, Bellevue, for appellant.

John W. Reisz, Deputy Sarpy County Attorney, for appellee State.


STEPHAN, Justice.

In this filiation proceeding initiated by the State of Nebraska, the district court for Sarpy County determined that Richard Filbert II was the biological father of Keith I. Hopkins, Jr. (Keith), a minor child, and ordered Filbert to pay child support. On appeal, Filbert contends that the district court erred in refusing to recognize several defenses which he asserted and in calculating Filbert's support obligation. We find no error and, therefore, affirm the judgment of the district court.


Chyrlyn K. Batt and Keith I. Hopkins (Hopkins) were married on August 4, 1985. Batt gave birth to four children during the marriage, the youngest of whom was Keith, born April 18, 1992. The marriage was dissolved by the district court for Sarpy County on October 8, 1993. Batt was awarded custody of the four children, and Hopkins was ordered to pay a total of $1,214 per month in child support. On May 3, 1995, the decree of dissolution was modified because the two older children chose to live with Hopkins. The two younger children, including Keith, remained in Batt's custody. In the order for modification, Hopkins' child support obligation was decreased to $400 per month, with a provision for reduction to $250 per month if Batt had custody of only one child.

On April 19, 1995, the State of Nebraska filed a petition in the district court for Sarpy County on behalf of Keith, requesting a determination that Filbert is Keith's biological father and obligated to provide child support. Batt and Filbert were named as defendants in this action; Hopkins is not a party. In his answer, Filbert denied paternity and asserted defenses of collateral estoppel, equitable estoppel, res judicata, laches, and mootness.

At trial on February 13, 1996, Batt testified that while separated from Hopkins prior to the dissolution of their marriage, she had sexual relations with Filbert on July 27, 1991 resulting in the conception of Keith. She denied having any other sexual partners within 2 months of the probable conception date. Batt testified that she telephoned Filbert regarding the pregnancy, but she could not remember exactly what was said during the conversation.

Filbert testified that at the time of trial he was on active duty in the Air Force, stationed in California. He was married and lived in base housing with his wife, his stepson, and his son from a previous marriage. His gross monthly income was $1,828, and his net take-home pay was approximately $1,511. A portion of this amount, designated as "BAS," is a subsistence allowance which is not subject to federal income tax. Filbert testified that he did not remember having sexual relations with Batt, but he believed that he was Keith's biological father.

The State presented evidence of genetic testing performed to determine whether Filbert was Keith's biological father. The test results established a 99.98-percent probability of paternity as compared to an untested, unrelated man of the...

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