Tyler F. v. Sara P.
| Decision Date | 10 July 2020 |
| Docket Number | Nos. S-19-513,S-19-514.,s. S-19-513 |
| Citation | 945 N.W.2d 502,306 Neb. 397 |
| Parties | TYLER F., appellant, v. SARA P., appellee. Geoffrey V., as next friend of J.F., a minor child, appellee and cross-appellant, v. Sara P., appellee and cross-appellee, and Tyler F., appellant and cross-appellee. |
| Court | Nebraska Supreme Court |
Andrea L. McChesney, of McChesney Family Law Office, for appellant.
Joel Bacon, Lincoln, and Tara L. Gardner, of Keating, O'Gara, Nedved & Peter, P.C., L.L.O., for appellee Geoffrey V.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
The district court awarded joint legal and physical custody of J.F. to Sara P., Tyler F., and Geoffrey V. Tyler appealed and assigned various errors. Geoffrey then cross-appealed. We conclude that the district court did not err in finding that Sara failed to meet her burden to set aside the notarized acknowledgment of paternity executed by Tyler and Sara at the time of J.F.’s birth. We further conclude that the trial court committed plain error in considering Geoffrey's paternity complaint while failing to give proper legal effect to Tyler's acknowledgment of paternity. We therefore affirm the court's denial of Sara's counterclaim to set aside Tyler's acknowledgment of paternity; reverse the district court's award of joint legal and physical custody of J.F. to Sara, Tyler, and Geoffrey; and remand the cause for further proceedings.
Sometime around November 2007, Tyler and Sara were dating and engaged in sexual intercourse. Sara gave birth to J.F. in August 2008. Sara continually represented to Tyler that he was the father of J.F., and Tyler signed an acknowledgment of paternity at the hospital when J.F. was born and is listed as J.F.’s father on the birth certificate.
Sara also engaged in sexual intercourse with Geoffrey around November 2007. Sara contends she believed Tyler was J.F.’s father because of information she received from her physician about her due date. At one point during the pregnancy, however, she contacted Geoffrey about the possibility that he might be the father and, about 8 to 9 months after J.F.’s birth, Geoffrey and Sara had discussions about genetic testing to determine paternity. Sara testified that she always had a "gut feeling" that J.F. might not be Tyler's biological child and that this "gut feeling" that "maybe he could be [Geoffrey's existed] when [Sara] was pregnant, when [J.F.] was born [and] when [J.F.] started really looking like him." It is undisputed she did not tell Tyler about Geoffrey's possible paternity.
Following J.F.’s birth, Tyler and Sara shared parenting responsibilities despite ceasing their romantic relationship, even through Sara's move to Oklahoma in 2013. At the time of Sara's move, J.F. was in the middle of his first year of preschool and the parties agreed J.F. would continue to attend school in Nebraska and reside with Tyler. After the school year, in the summer of 2014, Sara indicated to Tyler that she wanted J.F. to stay with her and attend kindergarten in Oklahoma.
Extending from the parties’ disagreement concerning J.F.’s schooling, Tyler filed a complaint to establish paternity, custody, and parenting time under case No. CI 14-2745, currently under appeal as case No. S-19-513. In his complaint, Tyler sought joint legal and physical custody of J.F., as well as an order determining paternity. Tyler alleged in this complaint that he "believes he is the biological father of [J.F.] and has always held himself out as such," that Sara "has always held [Tyler] out as [J.F.’s] biological father," and that Tyler "is listed and acknowledged on [J.F.’s] birth certificate."
In Sara's answer and counterclaim, she alleged that Tyler is not J.F.’s biological father and that he has no standing to request custody of J.F. As such, Sara sought, in part, that the district court dismiss Tyler's complaint, declare Tyler not to be the biological father of J.F., and award Sara sole physical and legal custody.
During the proceedings, the court ordered DNA testing that showed Tyler was not J.F.’s biological father. Following receipt of the testing results, Sara amended her answer and counterclaim, seeking, among other things, an order rescinding Tyler's acknowledgment of paternity on the ground of mutual mistake and disestablishing paternity.
Shortly after the DNA test excluded Tyler as the biological father, Sara reached out to Geoffrey and told him she believed he was the father. Geoffrey then filed a motion to intervene in Tyler's case, seeking intervention as the "biological father of [J.F.]" However, the court denied Geoffrey's motion because Geoffrey provided no basis to avoid the 4-year statute of limitations under Neb. Rev. Stat. § 43-1411 (Reissue 2016) and did not allege he was unaware of J.F.’s birth or the possibility of paternity.
Thereafter, Geoffrey filed a complaint to establish paternity under case No. CI 15-119, currently under appeal as case No. S-19-514, seeking that physical and legal custody be placed with Sara subject to his and Tyler's visitation rights. Geoffrey's complaint acknowledged Tyler as J.F.’s legal father, referencing Tyler's acknowledgment of paternity, and explained that Geoffrey was not made aware he was J.F.’s biological father until October 2014, when Sara told him about the results of Tyler's DNA test. The complaint's caption listed "Geoffrey [V.], as next friend of [J.F.], a minor child," as plaintiff. However, the text of the complaint and the signature line at the end of the complaint described only Geoffrey, individually, without mentioning his status as next friend of J.F. Geoffrey also noted that genetic testing established Tyler was not the biological father and alleged that Tyler's belief he was the biological father was "based on the material mistake of fact based on the representations of Sara ... at the time [J.F.] was conceived and born." Geoffrey claimed, "The presumption that ... Tyler ... is the father of [J.F.], through his signed Acknowledgment of Paternity, has been rebutted through genetic testing and the records of the Nebraska Department of Health and Human Services should be corrected."
Tyler filed an answer to Geoffrey's complaint. In his answer, Tyler requested the court dismiss the complaint insofar "as the matter has already been decided in Case No. CI 14-2745." The answer did not specifically raise any statute of limitations defenses.
The court consolidated cases Nos. CI 14-2745 and CI 15-119, held a trial, and entered an order in January 2016. The court determined that Geoffrey had standing to act in the capacity of next friend of J.F., that Tyler is the father of J.F. by reason of the acknowledgment of paternity, and that Geoffrey is the father of J.F. by reason of biological testing. The court found Sara failed to meet her burden to establish mutual mistake and denied her motion to set aside Tyler's acknowledgment. The court, therefore, considered the rights and interests of Tyler, Geoffrey, and Sara in making custody, parenting time, and child support determinations. The court awarded legal and physical custody of J.F. to Tyler, subject to visitation with Geoffrey and Sara, until December 31, 2016, at which time all three parties were awarded joint legal and physical custody. The court also calculated child support by considering the incomes of Tyler, Geoffrey, and Sara and ordered Geoffrey and Sara to pay child support until December 31, when all support obligations were to cease.
Tyler appealed, assigning the district court erred in finding that Geoffrey had standing to bring his claim as next friend of J.F. and in deviating from the child support guidelines in setting child support. Geoffrey cross-appealed and assigned that the court erred in concluding he had not raised a claim in his individual capacity and, to the extent the appellate court might conclude Tyler's paternity acknowledgment had to be set aside before determining that Geoffrey had paternity, that the court erred in evaluating the material mistake of fact question from Sara's perspective.
The Nebraska Court of Appeals reversed the district court's order.1 First, the Court of Appeals determined Geoffrey lacked standing to raise any claims on J.F.’s behalf, as J.F.’s next friend, because J.F. was in the custody of Sara, his biological mother, and Tyler, his legal father, and thus not without a guardian. However, the appellate court found that the trial court failed to address whether Geoffrey was also bringing his claims in his individual capacity. As such, the cause was remanded to the district court for determination of whether Geoffrey also brought his claims in his individual capacity and whether such individual claims are barred by the statute of limitations.
On remand, the district court found that Geoffrey had brought his claims in both his individual capacity and as J.F.’s next friend due to the language and intended beneficiary of the complaint. The court then found that Geoffrey's individual claims were not barred by the statute of limitations, because Tyler waived the defense by failing to assert it in his answer or another responsive pleading. The court found that even if Tyler had not waived the statute of limitations, it was tolled because Geoffrey alleged he was not made aware he was J.F.’s biological father until October 2014 and Tyler's answer did not sufficiently deny this allegation. Similarly, the court determined that res judicata did not bar Geoffrey's claims due to the court's denial of Geoffrey's motion to intervene, because Tyler failed to raise it as an affirmative defense and because even if he had, res judicata was inapplicable to the instant case. Given the court's finding that Geoffrey also brought his claims in his individual capacity, the court reinstated its previous order "with the caveat that the order applies to [Geoffrey] individually rather than as next friend of J.F."
Tyler assigns, restated, that the district court...
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