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STACY M. v. JASON M. 141
Cite as 290 Neb. 141
the future, after he was no longer legally detained on the
California sentence, it would be illegal to detain him on
the Nebraska sentences. Such a “possibility of future illegal
detention” is not the basis for a writ of habeas corpus. See id.
Because a writ of habeas corpus was not available to Johnson
based on the claims he made in his petition and his position
at the hearing, we agree with the district court that he was not
entitled to habeas corpus relief.
CONCLUSION
We conclude that the district court did not err when it con-
cluded that Johnson was not entitled to a writ of habeas corpus.
We therefore affirm the district court’s denial and dismissal of
Johnson’s petition for a writ of habeas corpus.
Affirmed.
Wright, J., participating on briefs.
Stacy M., appellee, v.
Jason M., appellant.
___ N.W.2d ___
Filed February 13, 2015. No. S-14-214.
1. Equity: Appeal and Error. On appeal from an equity action, an appellate court
decides factual questions de novo on the record and, as to questions of both
fact and law, is obligated to reach a conclusion independent of the trial court’s
determination.
2. Parent and Child: Paternity. A finding that an individual is not a biological
father is not the equivalent of a finding that an individual is not the legal father.
3. Parent and Child: Paternity: Presumptions: Evidence. Under Nebraska com-
mon law, later embodied in Neb. Rev. Stat. § 42-377 (Reissue 2008), legitimacy
of children born during wedlock is presumed. This presumption may be rebutted
only by clear, satisfactory, and convincing evidence.
4. Jurisdiction: Divorce: Paternity. The district court in a dissolution proceeding
has jurisdiction to resolve a disputed issue of paternity.
5. Divorce: Paternity: Child Support. Even if paternity is not directly placed in
issue or litigated by the parties to a dissolution proceeding, any dissolution decree
which orders child support implicitly makes a final determination of paternity.
6. Divorce: Paternity: Presumptions: Evidence. When the parties fail to submit
evidence at the dissolution proceeding rebutting the presumption of paternity, the
dissolution court can find paternity based on the presumption alone.
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142 290 NEBRASKA REPORTS
7. Divorce: Paternity: Child Support. A dissolution decree which orders child
support is a legal determination of paternity.
8. Divorce: Paternity: Child Support: Res Judicata. A dissolution decree that
orders child support is res judicata on the issue of paternity.
9. Paternity: Evidence: Res Judicata. Neb. Rev. Stat. § 43-1412.01 (Reissue
2008) overrides res judicata principles and allows, in limited circumstances, an
adjudicated father to disestablish a prior, final paternity determination based on
genetic evidence that the adjudicated father is not the biological father.
10. Parent and Child: Paternity. Neb. Rev. Stat. § 43-1412.01 (Reissue 2008) gives
the court discretion to determine whether disestablishment of paternity is appro-
priate in light of both the adjudicated father’s interests and the best interests of
the child.
11. Parent and Child: Due Process. Both parents and their children have cognizable
substantive due process rights to the parent-child relationship. These rights pro-
tect the parent’s right to the companionship, care, custody, and management of
his or her child, and they also protect the child’s reciprocal right to be raised and
nurtured by a biological or adoptive parent.
12. Parent and Child: Child Support. Support of one’s children is a fundamental
obligation which takes precedence over almost everything else.
13. Divorce: Child Support: Public Policy. The public policy of this state pro-
vides that parents have a duty to support their minor children until they reach
majority or are emancipated, and a parent is not relieved of this duty by virtue
of divorce.
14. Parent and Child: Child Support. The obligation of support is a duty of a
legally determined parent.
Appeal from the District Court for Adams County: Terri S.
Harder, Judge. Affirmed.
John B. McDermott, of Shamberg, Wolf, McDermott &
Depue, for appellant.
No appearance for appellee.
Heavican, C.J., Connolly, Stephan, McCormack, Miller-
Lerman, and Cassel, JJ.
Stephan, J.
After the dissolution of his marriage became final, Jason
M. discovered through genetic testing that he was not the bio-
logical father of a child born during the marriage. He sought
equitable relief in the form of an order suspending his child
support obligation without terminating the parental relation-
ship. He now appeals from an order denying his requested
relief. We affirm.
Nebraska Advance Sheets
STACY M. v. JASON M. 143
Cite as 290 Neb. 141
FACTS
Jason and Stacy M.’s marriage was dissolved by a decree
entered by the district court for Adams County in March 2011.
Although the decree itself is not included in the record, other
evidence establishes that it required Jason to pay child sup-
port for three minor children. The oldest child is now of age,
so Jason is currently paying approximately $600 per month
in child support for the two younger children born during
the marriage.
Jason suspected during the marriage that he was not the
biological father of the youngest child, but he did not raise
the issue of paternity in the dissolution proceedings. In 2013,
Jason obtained genetic testing which established he was not
the father of the child. Through counsel, he subsequently
filed a pleading entitled “Action in Equity to Suspend Child
Support.” He alleged Stacy knew the identity of the youngest
child’s biological father but refused to obtain child support
from him. He asserted the appropriate “equitable remedy” was
to suspend his obligation to pay child support for the young-
est child.
Stacy filed a pro se responsive pleading in which she alleged
she did not know the identity of the child’s biological father,
because she was “taken advantage of and [had] no knowledge
of by whom.” She further alleged that she always assumed
Jason was the child’s father and that Jason “is the only father
[the child] knows and will ever know.”
After conducting an initial evidentiary hearing, the district
court appointed a guardian ad litem for the child pursuant to
Neb. Rev. Stat. § 43-1412.01 (Reissue 2008) and then con-
ducted a second hearing at which the guardian ad litem par-
ticipated. At the second hearing, Jason’s counsel objected to
the appointment of the guardian ad litem, “because we’re not
proceeding under 43-1412.01. And our action was an action in
equity just to suspend the child support.”
Jason and Stacy testified at both hearings. Jason acknowl-
edged that since the dissolution of the marriage, he has always
exercised his visitation rights with the child and enjoys an
“[e]xcellent” relationship with him. They celebrate holidays
together, attend church together, go hunting and fishing, and
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144 290 NEBRASKA REPORTS
enjoy other sporting activities. He wants the relationship to
continue. His position in this case is aptly summarized by the
following excerpt from his testimony:
[J]ust for the record, I would like you, the judge, to know
and Stacy to know that I would continue and will always
love [the child] as my son until I die. He is considered my
son. I just feel that it’s not my responsibility to pay child
support for [a child] that is not biologically mine.
Jason testified that his employment and income have not
changed substantially since the decree was entered.
Stacy testified she did not know that Jason was not the bio-
logical father of the child until learning of the genetic testing
results. She testified that at the relevant time, she was drink-
ing at a bar with friends and thought she had been “drugged”
and then “taken advantage of sexually” by a man whose iden-
tity she did not know. She did not report this incident because
she was ashamed. She has never attempted to determine the
identity of the child’s biological father. She agreed that Jason
had a very good relationship with the child which she wants
to continue. She stated that the child “thinks the world” of
Jason and that she has not told the child that Jason is not his
biological father, because “it would crush him.” Stacy testi-
fied that she used the child support paid by Jason to support
the child and that termination of the child support obliga-
tion or the paternal relationship would not be in the child’s
best interests.
The district court denied the relief sought by Jason. It rea-
soned that a child born during wedlock is presumed to be the
legitimate offspring of the parties and that while § 43-1412.01
afforded Jason a remedy to disestablish his paternity, he had
not sought relief under that statute. The court found that Jason
“wants the rights of a parent, but does not want the majority
of the financial responsibility (child support) of a parent.”
Finding no Nebraska case that would support the requested
relief, the court declined to exercise its equitable power to
grant relief.
Jason timely appealed, and we moved this case to our docket
pursuant to our statutory authority to regulate the caseloads
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STACY M. v. JASON M. 145
Cite as 290 Neb. 141
of the appellate courts of this state.1 We note that Stacy did
not file a brief or otherwise appear in this appeal.
ASSIGNMENT OF ERROR
Jason assigns the district court abused its discretion by fail-
ing to suspend his child support obligation.
STANDARD OF REVIEW
[1] On appeal from an equity action, an appellate court
decides factual questions de novo on the record and, as to
questions of both fact and law, is obligated to reach a conclu-
sion independent of the trial court’s determination.2
ANALYSIS
[2,3] There is compelling evidence that Jason is not the bio-
logical father of the child in question. But as we have recently
noted, a finding that an individual is not a biological father
is not the equivalent of a finding that an individual is not the
legal father.3 Under Nebraska common law, later embodied in
Neb. Rev. Stat. § 42-377 (Reissue 2008), legitimacy of children
born during wedlock is presumed.4 This presumption may be
rebutted only by clear, satisfactory, and convincing evidence.5
The testimony or declaration of a husband or wife is not com-
petent to challenge the paternity of a child.6
[4-8] The parentage of a child born during a marriage is tra-
ditionally contested, if at all, in dissolution proceedings.7 The
1
Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
2
Floral Lawns Memorial Gardens Assn. v. Becker, 284 Neb. 532, 822
N.W.2d 692 (2012); Newman v. Liebig, 282 Neb. 609, 810 N.W.2d 408
(2011); County of Sarpy v. City of Papillion, 277 Neb. 829, 765 N.W.2d
456 (2009).
3
State on behalf of B.M. v. Brian F., 288 Neb. 106, 846 N.W.2d 257 (2014).
4
Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012). See Helter
v. Williamson, 239 Neb. 741, 478 N.W.2d 6 (1991).
5
Id.
6
Id.
7
Alisha C., supra note 4. See Ford v. Ford, 191 Neb. 548, 216 N.W.2d 176
(1974).
Nebraska Advance Sheets
146 290 NEBRASKA REPORTS
marital presumption of paternity can be rebutted at that time.8
The district court in a dissolution proceeding has jurisdiction to
resolve a disputed issue of paternity.9 Even if paternity is not
directly placed in issue or litigated by the parties to a dissolu-
tion proceeding, any dissolution decree which orders child sup-
port implicitly makes a final determination of paternity.10 When
the parties fail to submit evidence at the dissolution proceeding
rebutting the presumption of paternity, the dissolution court
can find paternity based on the presumption alone.11 The trial
court necessarily makes such a finding when it orders child
support, because the trial court could not order child support
without finding that the presumed father was the father of the
child.12 Thus, a dissolution decree which orders child support is
a legal determination of paternity.13 As a result, any dissolution
decree that orders child support is res judicata on the issue of
paternity.14 Under common law, the issue cannot be relitigated
except under very limited circumstances through a motion to
vacate or modify the decree.15
[9,10] However, in 2008, the Legislature enacted
§ 43-1412.01, which overrides res judicata principles and
allows, in limited circumstances, an adjudicated father to
disestablish a prior, final paternity determination based on
genetic evidence that the adjudicated father is not the biologi-
cal father.16 Section 43-1412.01 gives the court discretion to
determine whether disestablishment of paternity is appropriate
8
Id.
9
Alisha C., supra note 4; Younkin v. Younkin, 221 Neb. 134, 375 N.W.2d
894 (1985).
10
Alisha C., supra note 4. See DeVaux v. DeVaux, 245 Neb. 611, 514 N.W.2d
640 (1994) (superseded by statute on other grounds as stated in Alisha C.,
supra note 4).
11
Id.
12
Alisha C., supra note 4; DeVaux, supra note 10.
13
Alisha C., supra note 4. See Snodgrass v. Snodgrass, 241 Neb. 43, 486
N.W.2d 215 (1992).
14
Alisha C., supra note 4. See DeVaux, supra note 10.
15
Id.
16
Alisha C., supra note 4.
Nebraska Advance Sheets
STACY M. v. JASON M. 147
Cite as 290 Neb. 141
in light of both the adjudicated father’s interests and the best
interests of the child.17
During both the proceedings below and in this appeal,
Jason unequivocally stated he is not seeking disestablishment
of paternity pursuant to § 43-1412.01. Despite this, he argues
that the language of the statute supports the equitable remedy
he pursues by providing “a court with the authority to sus-
pend a child support order without necessarily disestablishing
paternity.”18 The first sentence of § 43.1412.01 authorizes an
individual to ask a court to “set aside a final judgment, court
order, administrative order, obligation to pay child support, or
any other legal determination of paternity” based on the results
of genetic testing. Jason argues that the use of the word “or”
distinguishes an “obligation to pay child support” from a “legal
determination of paternity,” thus authorizing a court to suspend
the former without affecting the latter.
But this argument ignores the use of the word “other” in
the same sentence. As we have noted, a decree of dissolution
which orders a man to pay child support is an implicit deter-
mination of paternity, even if the issue of paternity was not
contested. Clearly, this sentence of the statute lists an “obliga-
tion to pay child support” as one of several forms of a “legal
determination of paternity” which may be challenged through
genetic test results. This plain meaning is underscored by the
fourth sentence of the statute, which provides: “A court that
sets aside a determination of paternity in accordance with this
section shall order completion of a new birth record and may
order any other appropriate relief, including setting aside an
obligation to pay child support.”19 In short, the language of the
statute does not provide any support for the equitable relief
which Jason seeks. Rather, it permits but does not require a
court to set aside a child support obligation when paternity has
been disestablished. It does not authorize any change in child
support without such disestablishment.
17
Id.
18
Brief for appellant at 8.
19
§ 43-1412.01.
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148 290 NEBRASKA REPORTS
[11-14] Section 43-1412.01 provides Jason with a remedy
at law to seek disestablishment of paternity and elimination
of his child support obligation. But he has elected not to
utilize that remedy, because he does not wish to disestablish
paternity and thereby terminate the parental relationship. It
is commendable that Jason has maintained a loving relation-
ship with the child after learning that he is not the biological
father. However, the parental relationship is not one which
can be bifurcated in the manner Jason urges. Both parents and
their children have cognizable substantive due process rights
to the parent-child relationship.20 These rights protect the
parent’s right to the companionship, care, custody, and man-
agement of his or her child, and they also protect the child’s
reciprocal right to be raised and nurtured by a biological or
adoptive parent.21 Support of one’s children is a fundamental
obligation which takes precedence over almost everything
else.22 One aspect of support includes the regular monthly
payment of child support established by the guidelines.23 The
public policy of this state provides that parents have a duty to
support their minor children until they reach majority or are
emancipated, and a parent is not relieved of this duty by virtue
of divorce.24 The obligation of support is a duty of a legally
determined parent.
Jason is the legally determined parent of this child, and
he has not sought to set aside that determination despite
the existence of a statutory remedy and apparent factual
grounds to do so. We are not persuaded by his argument that
suspension of his child support obligation is equitable or
necessary to compel Stacy to seek support from the child’s
biological father. The district court did not err in denying the
requested relief.
20
In re Interest of Meridian H., 281 Neb. 465, 798 N.W.2d 96 (2011).
21
Id.
22
Caniglia v. Caniglia, 285 Neb. 930, 830 N.W.2d 207 (2013).
23
Id.
24
Henderson v. Henderson, 264 Neb. 916, 653 N.W.2d 226 (2002).
Nebraska Advance Sheets
STATE v. THORPE 149
Cite as 290 Neb. 149
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
Affirmed.
Wright, J., participating on briefs.
State of Nebraska, appellee, v.
Terrell T. Thorpe, appellant.
___ N.W.2d ___
Filed February 13, 2015. No. S-14-495.
1. Postconviction: Appeal and Error. Whether a claim raised in a postconviction
proceeding is procedurally barred is a question of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court resolves the questions independently of the lower court’s conclusion.
3. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
4. Effectiveness of Counsel: Appeal and Error. When reviewing a claim of inef-
fective assistance of counsel, an appellate court reviews the factual findings of
the lower court for clear error.
5. ____: ____. With regard to the questions of counsel’s performance or preju-
dice to the defendant as part of the two-pronged test articulated in Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an
appellate court reviews such legal determinations independently of the lower
court’s decision.
6. Postconviction: Appeal and Error. An appellate court will not consider as an
assignment of error a question not presented to the district court for disposition
through a defendant’s motion for postconviction relief.
7. Postconviction: Collateral Attack: Appeal and Error. A defendant cannot use
a motion for postconviction relief to collaterally attack issues that were decided
against him or her on direct appeal.
8. Postconviction: Appeal and Error. A motion for postconviction relief cannot be
used to secure review of issues which were or could have been litigated on direct
appeal, no matter how those issues may be phrased or rephrased.
9. Constitutional Law: Effectiveness of Counsel. A proper ineffective assistance
of counsel claim alleges a violation of the fundamental constitutional right to a
fair trial.
10. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a claim of
ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or her
counsel’s performance was deficient and that this deficient performance actually
prejudiced the defendant’s defense.