State on Behalf of S.M. v. Oglesby, s. S-91-646

• Decision Date: 14 January 1994
• Docket Number: Nos. S-91-646,S-91-824,s. S-91-646
• Parties: STATE of Nebraska on Behalf of Minor Child S.M., Appellee, v. Robert E. OGLESBY, Appellant.
• Court: Nebraska Supreme Court

Page 53

510 N.W.2d 53

244 Neb. 880

STATE of Nebraska on Behalf of Minor Child S.M., Appellee, v. Robert E. OGLESBY, Appellant.

Nos. S-91-646, S-91-824.

Supreme Court of Nebraska.

Jan. 14, 1994.

Syllabus by the Court

1. Paternity: Limitations of Actions. Under the provisions of Neb.Rev.Stat. § 43-1411 (Reissue 1988), actions brought by a guardian or next friend on behalf of children born out of wedlock may be brought within 18 years after the child's birth.

2. Paternity: Equal Protection. Neb.Rev.Stat. § 43-1411 (Reissue 1988) does not violate the Equal Protection Clause of either the U.S. Constitution or the Nebraska Constitution.

3. Paternity: Limitations of Actions. Neb.Rev.Stat. § 43-1411 (Reissue 1988) does not extend the statute of limitations for anyone other than the minor child involved.

4. 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.

5. 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 by the trial court.

Lori L. Wilson, Johnson & Wilson, Crete, for appellant.

Gary E. Lacey, Lancaster Co. Atty., and Andrew R. Jacobsen, Lincoln, for appellee.

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

GRANT, Justice, Retired.

These two cases were initiated by the filing of a single petition by the State of Nebraska on behalf of minor child S.M. against defendant-appellant, Robert E. Oglesby. The petition, filed August 1, 1989, alleged that the child was born out of wedlock on June 24, 1977, and was the child of Lori Jo Tretts and defendant. The petition further alleged that the State had paid the medical expenses in connection with the birth of the child; that the child was a dependent child; and that Tretts had received "public assistance, commonly known as ADC payments." The State asked for judgment establishing that defendant was the natural father of the minor child; for support of the child from August 1, 1987; and for medical expenses in connection with the child's birth.

Defendant, by answer, generally denied the allegations of the petition and alleged that Neb.Rev.Stat. §§ 43-1406, 43-1407, 43-1411, and 43-1412 (Reissue 1988) were unconstitutional, in that such statutes authorized this action which was instituted more than 12 years after the child's birth.

Trial was held on June 26, 1990. On May 21, 1991, the court entered its order determining that defendant was the natural father of the minor child; that the statutes in question were constitutional; that defendant should pay $50 per month child support beginning on May 1, 1991; and that defendant should pay $570 "for medical expenses incurred in relation to the pregnancy, confinement and recovery of Lori Jo Tretts in the birth of [the child]." The trial court set a date to review defendant's child support obligation. Defendant timely appealed this judgment in case No. S-91-646.

On June 13, 1991, a hearing was held on the issue of the amount of defendant's child support. After trial, defendant was ordered to pay $230 per month for support of the child, beginning July 1, 1991. Defendant timely appealed this judgment in case No. S-91-824.

In this court, since case No. S-91-646 involved the constitutionality of a statute, the appeal was treated as a direct appeal to this court. See Neb.Rev.Stat. § 24-1106(1) (Cum.Supp.1992). The appeal in case No. S-91-824 also raised the issue of the constitutionality of the same statutes, as well as the question of the appropriateness of the strict application of this court's child support guidelines. The two cases were joined for disposition in this court.

CASE NO. S-91-646

In this case, evidence was adduced that the child was born on June 24, 1977, and that defendant and Tretts had sexual intercourse on three occasions in September 1976. Tretts testified that defendant was the father of the child. Evidence of blood tests on defendant, Tretts, and the child was received without objection. That evidence showed "the probability of paternity [of defendant] is 99.25%."

The trial court found that defendant was the father of the child and entered an order as set out above.

Defendant timely appealed and, in this court, assigns a single error, alleging that "Nebr.Rev.Stats. Sections 43-1406-07, 43-1411, and 43-4112 [sic] [are] unconstitutional and void because they deny defendant his right to due process of law and equal protection...." We affirm, as herein modified.

The appeal is directed primarily against § 43-1411 (Reissue 1988), which provided:

A civil proceeding to establish the paternity of a child may be instituted, in any district court of the district where the child is domiciled or found, by (1) the mother or the alleged father of such child, either during pregnancy or within four years after the child's birth ... or (2) the guardian or next friend of such child within eighteen years after the child's birth.

We note that § 43-1411 was amended by 1991 Neb.Laws, L.B. 457, § 16, and 1993 Neb.Laws, L.B. 500, § 54, in ways not affecting our determination in this case.

Defendant's position is that "[t]his statute provides for a four year limitation of a mother's or a father's right to establish paternity, yet, allows someone else to bring the action on behalf of the child within eighteen years." Brief for appellant in case No. S-91-646 at 5.

Our determination in this case was foreshadowed by our decision in Doak v. Milbauer, 216 Neb. 331, 343 N.W.2d 751 (1984). In that case, we considered the constitutionality of Neb.Rev.Stat. § 13-111 (Reissue 1977). Section 13-111 is now § 43-1411, which is the statute at issue in this case. In Doak, 216 Neb. at 334-35, 343 N.W.2d at 753, we stated:

The clear import of the language of § 13-111 is that the mother's cause of action to establish the paternity of her child in order to recover her damages is barred 4 years after the child's birth. There is, however, no such limitation on a cause of action brought on the child's behalf by a guardian or next friend to establish paternity and secure the child's rights.

In Doak, we held that a parent's right to initiate actions in connection with children born out of wedlock is barred after 4 years, and in this case, we hold that under the provisions of § 43-1411, actions brought by a guardian or next friend on behalf of children born out of wedlock may be brought within 18 years after the child's birth.

Defendant contends that § 43-1411 and related statutes constitute an unconstitutional "statutory scheme for the bringing of paternity actions" because of the different treatment of children, mothers, and putative fathers who do not require public assistance. Brief for appellant in case No. S-91-646 at 6. That contention is without merit. Section 43-1411 provides that any child, through a guardian or next friend, may assert rights to knowledge of paternity and to support for 18 years after the child's birth. Such a statute complies completely with the State's "parens patriae" role in protecting the rights of minors who are under a legal disability to sue on their own behalf. Any guardian or next friend, including the State, can bring such actions. Drennen v. Drennen, 229 Neb. 204, 426 N.W.2d 252 (1988), relied on by defendant, does not support defendant's position. Drennen held that a statutory scheme providing for different systems for handling the cases of minor children receiving public assistance and minor children not receiving public assistance was "unconstitutional as violating the equal protection clause of the U.S. Constitution and Neb. Const. art. I, § 13 and art. III, § 18." 229 Neb. at 218, 426 N.W.2d at 260. Section 43-1411 does not violate the Equal Protection Clause of either the U.S. Constitution or the Nebraska Constitution. The determination of the trial court that § 43-1411 is constitutional is affirmed.

We do note, however, that a part of the relief granted by the trial court was improper. In addition to determining the child's natural father and providing for support of the child, the trial court ordered judgment "for medical expenses incurred in relation to the pregnancy, confinement and recovery of Lori Jo Tretts in the birth of [the child]." That part of the judgment is not based on the rights of the child, but is in relation to the rights of the child's mother. As such, it was barred by the applicable 4-year statute of limitations affecting the rights of the mother or the mother's assignee. Section 43-1411 does not extend the statute of limitations for anyone other than the minor child involved.

CASE NO. S-91-824

In case No. S-91-646, above, the court ordered defendant to pay $50 per month as support for the minor child beginning on May 1, 1991, and ordered a later review of that amount. The amount of that monthly payment was not challenged by defendant. After the review hearing, the court ordered defendant to pay $230 per month as support, effective July 1, 1991.

Defendant timely appealed that order and in this court assigns a single error: "The trial court abused its discretion in failing to find that the strict application of the Nebraska Supreme Court child support guidelines would result in an unjust and inequitable child support order." We agree, and we reverse the order and remand the cause for further proceedings.

In its brief, the State alleges that the court applied the child support guidelines in setting the support payment. Under our Nebraska Child Support Guidelines, paragraph C, this court has provided that the guidelines shall be applied as a rebuttable presumption and that child support orders shall be established in accordance with the guidelines unless one or both p...