State v. Brian F.

Decision Date16 May 2014
Docket NumberNo. S–12–1123.,S–12–1123.
PartiesState of Nebraska on behalf of B.M., a minor child, appellant, v. Brian F., appellee.
CourtNebraska Supreme Court


Appeal from the District Court for Douglas County: Peter C. Bataillon, Judge. Reversed and remanded for further proceedings.

Kathryn L. Hoyme and Sara E. Preisinger for appellant.

Brian F., pro se.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.
Syllabus by the Court

1. Modification of Decree: Child Support: Appeal and Error. Modification of child support payments is entrusted to the trial court's discretion, and although, on appeal, the issue is reviewed de novo on the record, an appellate court will affirm the trial court's decision absent an abuse of discretion.

2. Judges: Words and Phrases. A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

3. Paternity: Child Support. Pursuant to Neb.Rev.Stat. § 43–1402 (Reissue 2008), child support in a paternity action is to be determined in the same manner as in cases of a child born in lawful wedlock.

4. Modification of Decree: Child Support: Proof. A party seeking to modify a child support order must show a material change in circumstances which (1) occurred subsequent to the entry of the original decree or previous modification and (2) was not contemplated when the decree was entered.

5. Modification of Decree: Child Support. Among the factors to be considered in determining whether a material change of circumstances has occurred are changes in the financial position of the parent obligated to pay support, the needs of the children for whom support is paid, good or bad faith motive of the obligated parent in sustaining a reduction in income, and whether the change is temporary or permanent.

6. Modification of Decree: Child Support. The paramount concern in child support cases, whether in the original proceeding or subsequent modification, remains the best interests of the child.

7. Modification of Decree: Child Support: Proof. The party seeking the modification of child support has the burden to produce sufficient proof that a material change of circumstances has occurred that warrants a modification.

8. Courts: Jurisdiction. In civil cases, a court of general jurisdiction has inherent power to vacate or modify its own judgment during the term in which it was issued.

Miller–Lerman, J.


Brian F. signed a notarized “Acknowledgement of Paternity” on January 16, 1995, stating that he is the biological father of B.M., the minor child at issue in this case. Shirley M. had given birth to B.M. in August 1994. The State of Nebraska on behalf of B.M. filed a “Petition for Establishment of Paternity and Support” in the district court for Douglas County, and a decree of paternity was filed on July 18, 1996. The decree established Brian as the legal father of the child and ordered him to pay child support. In 2009, Brian's child support payment was ordered increased. Brian testified that he had suspicions he was not the biological father in 1996.

In 2011, Brian sought to modify the child support. He filed pleadings in November 2011 and February and June 2012, seeking to reduce or terminate his child support obligation. During the course of the modification proceedings, genetic testing results excluded Brian as the biological father of B.M. No guardian ad litem was appointed to protect the child. Because of the genetic testing results, in an order filed October 29, 2012, the district court for Douglas County treated the action as a challenge to the acknowledgment, as though pursued under Neb.Rev.Stat. § 43–1409 (Reissue 2008); [set] aside the finding of paternity,” as recommended by the referee; and terminated Brian's child support obligation. The State on behalf of B.M. appeals, claiming, inter alia, that the district court erred when it “void[ed] the determination of paternity ... and terminat[ed] [Brian's] child support obligation.” As explained below, although Brian remains free to do so, the validity of the judgment of paternity has not been attacked by Brian and the State has not agreed to set aside the paternity decree. And although we are not unsympathetic to Brian's current status, we nevertheless must conclude, based on established principles, that the district court erred when it converted the action to modify child support to a disestablishment action and terminated child support based solely on the results of genetic testing. We therefore reverse the order of October 29, 2012, and remand the cause for a determination of modification of child support.


The minor child at issue in this case, B.M., was born in August 1994. Approximately 5 months after the birth of B.M., on January 16, 1995, Brian signed a notarized “Acknowledgement of Paternity,” in which he acknowledged that he was the biological father of B.M. On July 18, 1996, a decree of paternity was filed. Under the decree, Shirley was found to be the mother of B.M. The record in the present case suggests that in the paternity action proceeding, the acknowledgment served as a basis for the factual finding that Brian was the biological father and the judgment of paternity established that Brian was the legal father. See Neb.Rev.Stat. § 43–1412 (Cum.Supp.1996). The decree serves as a judgment. The decree of paternity also ordered Brian to pay child support in the amount of $50 per month and to provide health insurance for B.M. The decree and acknowledgment were received as evidence in the current proceeding to modify support.

On December 15, 2008, the State, which was providing public assistance, filed an application for modification of child support. The district court entered an order on February 18, 2009, increasing Brian's child support payments to $369 per month. Brian testified that he was aware of this child support order because the money was taken out of his paycheck.

On November 17, 2011, Brian, pro se, filed a Petition for Modification of Child Support.” In his petition, Brian alleged that his existing child support obligation created a severe economic hardship and attached a “Child Support Worksheet,” outlining his request for a reduction in child support. Brian also made a request for genetic testing. The State filed its answer on January 20, 2012. On February 13, Brian filed another Petition for Modification of Child Support.” The February 13 Petition for Modification of Child Support” included documentation, including a “Child Support Worksheet,” a letter from his employer regarding salary, pay stubs, and letters regarding delinquent taxes. Evidently, the matter was referred to a child support referee, who, on February 16, ordered genetic testing for Brian, Shirley, and B.M., the results of which excluded Brian as the biological father of B.M.

On June 12, 2012, Brian filed a form titled “Application and Affidavit to Obtain Termination of Child Support” and attached the results of the DNA test. Brian used the Nebraska pro se form which lists the customary reasons for termination of child support, i.e., death, emancipation, or marriage of the child, or the child's attaining the age of 19 years. When Brian filed this application to terminate child support, like an adoptive father, Brian was not a biological father, but he was the legal father.

A hearing was held before a child support referee for the district court on June 25, 2012. At the start of the hearing, the referee stated that [t]his matter comes on for hearing on a Motion to Terminate Child Support.” Brian appeared at the hearing, and he testified under oath in his own behalf. Brian did not claim he had not been intimate with Shirley. Instead, he testified that “sometime around—between '94 and '96,” he “had suspicions that [he] was not the father.” The DNA test results were received in evidence. The State offered and the referee received the notarized “Acknowledgement of Paternity” signed by Brian. Brian testified that he recognized his signature on the document.

At the close of the June 25, 2012, child support hearing, without reference to the economic situation of the parties or the best interests of the child, the referee recommended terminating Brian's child support obligation, because of the results of the genetic testing. The referee stated that “you're not the dad, so to hold you responsible in the future is unconscionable. So that's what I'm going to recommend.” The referee recommended a termination date as of the end of the month in which the results were reported.

The referee's written report filed June 28, 2012, stated that Brian “seeks to terminate his child support obligation based upon genetic testing that excluded him as the biological father of the minor herein.” The referee recommended that “the child support obligation should be terminated with the end of the month in which the genetic test results were reported” and further recommended that the district court “sign an order setting aside the finding of paternity and terminating the child support obligation herein as of May 31, 2012.” The child support referee did not base his decision on child support calculations or base his reasoning on Brian's financial situation.

On June 28, 2012, the State filed its exceptions to the referee's findings. The district court held two hearings on the State's exceptions. At no time during the proceedings was a guardian ad litem appointed to represent the child. The first hearing was held on August 3, and Brian appeared pro se. At the August 3 hearing, the State offered and the court received the record of the hearing before the referee, and the court took judicial notice of the court file. The State argued that Brian had signed the notarized “Acknowledgement of Paternity” in 1995 and that Brian has “held himself...

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