State on Behalf of Joseph F. v. Rial

Decision Date25 October 1996
Docket NumberS-94-1245,Nos. S-93-1056,s. S-93-1056
Citation554 N.W.2d 769,251 Neb. 1
PartiesSTATE of Nebraska on Behalf of minor child JOSEPH F., Appellee, v. Roger RIAL, Appellant.
CourtNebraska Supreme Court

Page 769

554 N.W.2d 769
251 Neb. 1
STATE of Nebraska on Behalf of minor child JOSEPH F., Appellee,
v.
Roger RIAL, Appellant.
Nos. S-93-1056, S-94-1245.
Supreme Court of Nebraska.
Oct. 25, 1996.

Page 770

Syllabus by the Court

1. Actions: Paternity: Child Support: Equity. While a paternity action is one at law, the award of child support in such an action is equitable in nature.

2. Judgments: Appeal and Error. When reviewing a question of law, an appellate

Page 771

court reaches a conclusion independent of the lower court's ruling.

3. 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.

4. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's failure to give a requested instruction, an appellant has the burden of showing that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's failure to give the tendered instruction.

5. Paternity: Proof. In a civil action, only a preponderance of the evidence is necessary to sustain the establishment of paternity.

6. Jury Instructions: Appeal and Error. It is not error for a trial court to refuse a requested instruction if the substance of the proposed instruction is contained in those instructions actually given.

7. Jury Instructions: Appeal and Error. Failure to object to a jury instruction after it has been submitted to counsel for review precludes raising an objection on appeal absent plain error.

8. Paternity: Evidence: Proof. The State's burden in proving a sufficient chain of custody is only to establish with sufficient evidence the finding that the paternity test results arose from the analysis of the individuals' blood samples submitted in the matter.

9. Trial: Evidence: Proof. The degree of proof necessary to establish a chain of custody is a matter within the trial court's discretion.

10. Jurisdiction: Paternity: Child Support: Appeal and Error. A district court retains jurisdiction for orders regarding child support notwithstanding the fact that a paternity determination is on appeal.

11. Child Support. An out-of-wedlock child has the statutory right to be supported to the same extent and in the same manner as a child born in lawful wedlock; the resulting duty of a parent to provide such support may, under appropriate circumstances, require the award of retroactive child support.

[251 Neb. 2] 12. Child Support. The requirement of child support begins at the time of the birth of the child, whether the child is born in lawful wedlock or otherwise.

13. Child Support: Wages. It is appropriate to consider overtime wages in setting child support if the overtime is a regular part of the employment and the employee can actually expect to regularly earn a certain amount of income for working overtime.

Elizabeth A. Sterns, Lincoln and, on brief, Shawn Elliott, Kearney, and Gary Zamber, of Mowbray & Walker, P.C., Lincoln, for appellant.

Gary E. Lacey, Lancaster County Attorney, and Andrew R. Jacobsen, Lincoln, for appellee.

Before WHITE, C.J., CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

GERRARD, Judge.

I. STATEMENT OF CASE

Roger Rial appealed to the Nebraska Court of Appeals a judgment that was entered against him in accordance with a jury verdict finding Rial to be the biological father of the minor child Joseph F. in case No. S-93-1056. While this appeal was pending, the district court referred all collateral matters regarding child support to a referee for hearing and recommendations for disposition. The district court for the most part adopted the recommendations of the referee and issued an order requiring Rial to pay present and past child support, as well as other medical and legal expenses. Rial appealed this order to the Court of Appeals in case No. S-94-1245. Under our authority to regulate the caseloads of the two courts, we, on our own motion, removed both matters and joined the two cases for disposition in this court.

Page 772

II. FACTS

Rial began dating Deborah P. in July 1987. Although Rial lived in Omaha and Deborah in Lincoln, they saw each other regularly until early October 1988. Deborah testified that during[251 Neb. 3] this period, she would have sexual intercourse with Rial on the average of once or twice a week. Deborah stated that she did not have sexual intercourse with any other man while she was involved with Rial.

Rial claimed that he dated Deborah less than once a month, but admitted that he had sexual intercourse with her every time he saw her. Rial testified that the last time he had sexual intercourse with Deborah was in late July 1988. Deborah suspected she was pregnant in late September 1988. Her suspicion was confirmed by a pregnancy test performed on October 5. On May 30, 1989, Deborah gave birth to a son, the minor at issue, Joseph.

The State filed a second amended petition on December 23, 1991, alleging Rial to be the father of Joseph. Rial answered with a general denial, asserted that he was indigent, and requested appointment of counsel. A hearing was held concerning Rial's motion for appointed counsel before a district court referee on March 23, 1992. The referee reserved ruling on Rial's request for appointed counsel, but granted Rial's request during the course of the hearing to have genetic testing conducted. On April 8, an employee of Roche Biomedical Laboratories in Omaha obtained a sample of Rial's blood for genetic testing at its facility in Burlington, North Carolina. On April 23, employees of Roche Biomedical in Lincoln obtained samples of blood from Deborah and Joseph for genetic testing at this same North Carolina facility.

The district court appointed counsel for Rial on October 16, 1992. On November 6, Rial filed a timely request to have the matter of paternity tried to a jury and to have personal testimony presented with respect to any expert testimony concerning genetic testing and the chain of custody of any blood or tissue specimen used for any genetic testing.

On October 29, 1993, after a 2-day trial concerning the issue of paternity, a jury found Rial to be the father of Joseph. The district court entered judgment against Rial as to paternity and referred all issues collateral to a finding of paternity to the district court referee. Rial timely appealed the district court judgment on November 29.

[251 Neb. 4] The referee recommended that Rial pay current child support of $236 per month; pay retroactive child support of $10,126; pay 73 percent of the birthing expenses for both Deborah and Joseph, totaling $2,920; provide health insurance for Joseph if available through employment; and pay the costs of the action, $216, which included the cost of genetic testing. The referee recommended denial of attorney fees.

Rial timely filed exceptions to the referee's recommendations. One exception asserted that the district court was without jurisdiction to enter orders of support during the pendency of Rial's appeal of paternity. The district court accepted Rial's argument and deferred ruling on the referee's recommended order until after resolution of Rial's appeal in case No. S-93-1056. Pursuant to the State's motion, the district court reconsidered its prior ruling concerning jurisdiction and found that it had jurisdiction to enter collateral orders during the pendency of Rial's appeal of paternity. After reviewing the evidence, the district court reduced the birthing expenses to $564.57, but otherwise adopted the recommended order of the referee and entered judgment accordingly. Rial then appealed the judgment of support on a timely basis.

III. SCOPE OF REVIEW

While a paternity action is one at law, the award of child support in such an action is equitable in nature. Sylvis v. Walling, 248 Neb. 168, 532 N.W.2d 312 (1995). When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51 (1996); Goolsby v. Anderson, 250 Neb. 306, 549 N.W.2d 153 (1996). 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. Sylvis

Page 773

v. Walling, supra; State on Behalf of S.M. v. Oglesby, 244 Neb. 880, 510 N.W.2d 53 (1994).
251 Neb. 5

IV. ANALYSIS

1. Case No. S-93-1056

(a) Determination of Paternity

In his first assignment of error, Rial asserts that the district court erred in failing to instruct the jury that the State must prove paternity by clear and convincing evidence and in failing to instruct the jury that it must disregard paternity testing results if the State does not first establish that Rial had sexual intercourse with Deborah during the time of conception. In addition, Rial asserts that the district court erred in admitting paternity testing results without sufficient evidence of a proper chain of custody and use of proper laboratory testing procedures.

(i) Scope of Review

To establish reversible error from a court's failure to give a requested instruction, an appellant has the burden of showing that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's failure to give the tendered instruction. Reavis v. Solminski, 250 Neb. 711, 551 N.W.2d 528 (1996); Farmers & Merchants Bank v. Grams, 250 Neb. 191, 548 N.W.2d 764 (1996).

(ii) Jury Instructions

a) Burden of Proof

Rial's proposed jury instructions required the jury to find that Rial was the father of Joseph by clear and convincing evidence. The district court rejected Rial's offered jury instructions and instead instructed the jury that the State's burden of proof was the greater weight of the...

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