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JAMIE N. v. KENNETH M.
Cite as 23 Neb. App. 1
Jamie N., on behalf of M adison N., appellant, v.
K enneth M., defendant and third -party
plaintiff, appellee, and Eric C.,
third -party defendant, appellee.
___ N.W.2d ___
Filed July 7, 2015. No. A-14-535.
1. Rules of the Supreme Court: Records: Appeal and Error. Neb. Ct. R.
App. P. § 2-109(D)(1)(f) and (g) (rev. 2012) requires that factual recita-
tions be annotated to the record, whether they appear in the statement of
facts or the argument section of a brief.
2. ____: ____: ____. The failure to annotate factual recitations in a brief
to the record may result in an appellate court’s overlooking a fact or
otherwise treating the matter under review as if the represented fact does
not exist.
3. Res Judicata: Collateral Estoppel: Appeal and Error. The applicabil-
ity of the doctrine of res judicata and the applicability of claim preclu-
sion are questions of law, as to which appellate courts are obligated to
reach a conclusion independent of the determination reached by the
court below.
4. Res Judicata. The doctrine of res judicata, or claim preclusion, bars the
relitigation of a matter that has been directly addressed or necessarily
included in a former adjudication if (1) the former judgment was ren-
dered by a court of competent jurisdiction, (2) the former judgment was
a final judgment, (3) the former judgment was on the merits, and (4) the
same parties or their privies were involved in both actions.
5. Dismissal and Nonsuit: Limitations of Actions: Words and Phrases.
A dismissal without prejudice means that another petition may be filed
against the same parties upon the same facts as long as it is filed within
the applicable statute of limitations.
6. Res Judicata: Judgments: Words and Phrases. For purposes of res
judicata, the definition of a judgment on the merits is one which is based
on legal rights as distinguished from mere matters of practice, proce-
dure, jurisdiction, or form.
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7. Res Judicata: Judgments: Collateral Attack. Res judicata will not
preclude a second suit between the same parties if the forum in which
the first action was brought did not have jurisdiction to adjudicate the
action; stated another way, judgments entered by a court without juris-
diction are void and subject to collateral attack.
8. Dismissal and Nonsuit: Judgments. As a general rule, a dismissal with
prejudice is an adjudication on the merits.
9. Res Judicata: Dismissal and Nonsuit: Jurisdiction. If a court did not
have jurisdiction over a matter it dismissed with prejudice, res judicata
would not preclude a second suit between the same parties.
10. Paternity: Rescission: Time. Under Neb. Rev. Stat. § 43-1409 (Reissue
2008), a signed, notarized acknowledgment of paternity may be
rescinded within the earlier of (1) 60 days or (2) the date of an adminis-
trative or judicial proceeding relating to the child.
11. Paternity. After the rescission period contained in Neb. Rev. Stat.
§ 43-1409 (Reissue 2008) ends, a notarized acknowledgment is consid-
ered a legal finding and legally establishes paternity in the person named
in the acknowledgment as the father.
12. ____. 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.
13. Parties: Jurisdiction: Waiver. The presence of necessary parties is
jurisdictional and cannot be waived by the parties.
14. Parties: Jurisdiction. If necessary parties to a proceeding are absent,
the district court has no jurisdiction to determine the controversy.
15. Parties: Words and Phrases. An indispensable party is one whose
interest in the subject matter of the controversy is such that the contro-
versy cannot be finally adjudicated without affecting the indispensable
party’s interest, or which is such that not to address the interest of the
indispensable party would leave the controversy in such a condition
that its final determination may be wholly inconsistent with equity and
good conscience.
16. Dismissal and Nonsuit: Parties. A dismissal based upon a failure to
join a necessary party is a dismissal of the action without prejudice.
17. Parent and Child: Due Process. Both parents and their children have
cognizable substantive due process rights to the parent-child relation-
ship, which rights protect 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 adop-
tive parent.
18. Child Support: Public Policy. The public policy of this state provides
that parents have a duty to support their minor children until they reach
majority or are emancipated.
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JAMIE N. v. KENNETH M.
Cite as 23 Neb. App. 1
19. Parent and Child: Child Support. The obligation of support is a duty
of a legally determined parent.
20. Paternity: Child Support: Parties. The legal father of a child is a
necessary or indispensable party to an action to determine paternity and
place support obligations on another man.
21. Judgments: Collateral Estoppel. Issue preclusion bars the relitigation
of a finally determined issue that a party had a prior opportunity to fully
and fairly litigate.
22. ____: ____. Issue preclusion applies where (1) an identical issue was
decided in a prior action, (2) the prior action resulted in a final judg-
ment on the merits, (3) the party against whom the doctrine is to be
applied was a party or was in privity with a party to the prior action, and
(4) there was an opportunity to fully and fairly litigate the issue in the
prior action.
23. Collateral Estoppel. Issue preclusion applies only to issues actually
litigated.
24. ____. Issue preclusion protects litigants from relitigating an identical
issue with a party or his privy and promotes judicial economy by pre-
venting needless litigation.
25. Appeal and Error. An appellate court is not obligated to engage in an
analysis which is not needed to adjudicate the controversy before it.
Appeal from the District Court for Sarpy County: William
B. Zastera, Judge. Reversed and remanded for further
proceedings.
David J. Reed, of Jorgenson & Reed, L.L.C., and, on brief,
W. Gregory Lake for appellant.
Charles L. Grimes, of Vacanti Shattuck, for appellee Eric C.
Inbody, Pirtle, and Bishop, Judges.
Bishop, Judge.
Jamie N. filed the present action on behalf of her minor
child, Madison N., born in July 2011, against Kenneth M. and
Eric C. in Sarpy County District Court, seeking to rescind
Kenneth’s acknowledgment of paternity of Madison and to
establish Eric’s paternity of Madison (genetic testing estab-
lished that Eric is Madison’s biological father). Kenneth
moved for summary judgment, seeking that the district court
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rescind his acknowledgment of paternity; the district court
granted his motion and rescinded his acknowledgment. In a
subsequent order, the district court granted Eric’s motion for
summary judgment, concluding that Jamie’s action to establish
his paternity was barred by res judicata and issue preclusion
because both the State and Jamie had previously filed com-
plaints against Eric, to establish his paternity, that had been
dismissed. Jamie appeals from the order of summary judgment
in favor of Eric.
FACTUAL BACKGROUND
Jamie and Kenneth were involved in an intimate relation-
ship between September and November 2010. According to
Kenneth, he did not date or have a relationship with anyone
else during this time and it was his understanding that Jamie
also was not in a relationship with anyone else at that time.
Kenneth averred that Jamie informed him she was pregnant in
the fall of 2010 and told him he was the father and that he had
no reason to disbelieve her.
Jamie gave birth to Madison in July 2011. Two days after
Madison’s birth, Kenneth signed a notarized acknowledgment
of paternity. Kenneth claimed that he would not have signed
the acknowledgment of paternity had he known it was pos-
sible he was not the father.
In November 2011, Kenneth and Jamie obtained a DNA test
demonstrating that he was not the father of Madison.
According to Jamie, at the time Madison was conceived,
Jamie was involved in sexual relationships with both Kenneth
and Eric, but believed Kenneth had a better chance of being
the father than Eric and “mistakenly” told Kenneth he was the
father. After Jamie learned she had “made a mistake” in deter-
mining that Kenneth was Madison’s father, she contacted the
State of Nebraska to initiate an action on behalf of Madison
against Eric. Before the State commenced the action, Eric
submitted to a DNA test, which found a 99-percent probability
that he was the father of Madison.
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Cite as 23 Neb. App. 1
Jamie claimed that neither Kenneth nor Eric has had any
substantial contact with Madison during her life; Kenneth
had seen her twice, and Eric had seen her once. Madison has
numerous health issues, and Jamie believed that establishing
Eric as Madison’s father would help ensure Madison receives
proper medical treatment, because doctors would know her
full family medical history.
PROCEDURAL BACKGROUND
First Action.
On September 19, 2012, the State of Nebraska filed a pater-
nity complaint on behalf of Madison against Eric in Sarpy
County District Court (first action), pursuant to its author-
ity contained in Neb. Rev. Stat. §§ 43-512.03 (Cum. Supp.
2014) and 43-512.04 (Reissue 2008). Jamie was named as a
third-party defendant to the action. Kenneth was not a party
to the action. According to the complaint, the State alleged
that “[a]nother individual is on the birth certificate, but was
excluded by private genetic testing,” and that genetic testing
showed that Eric had at least a 99-percent probability of pater-
nity. The complaint sought to establish paternity as to Eric and
sought child support.
On December 18, 2012, the Sarpy County District Court
entered a “Child Support Journal Entry”; the entry states, “This
matter came on for hearing” before the district court referee
on December 13. The order stated that neither Jamie nor Eric
appeared at the hearing before the referee, nor did their coun-
sel. The State appeared at the hearing before the referee and,
without specifying why, made an “oral motion to dismiss the
paternity action,” which the referee sustained; the referee then
dismissed the matter “with prejudice.” The district court found
the referee’s recommendations were proper and approved and
adopted them by its December 18 order. No appeal was taken
from this order.
Second Action.
[1,2] Both the district court and Eric refer to another pater-
nity action filed by Jamie against Eric, in Douglas County.
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Cite as 23 Neb. App. 1
Eric represents in his brief that Jamie filed this complaint in
January 2013 and that such complaint was dismissed without
prejudice on April 1, 2013, as it was determined that none of
the parties resided in Douglas County. However, we note that
the pleadings and dismissal from the Douglas County action
are not in our record. Neb. Ct. R. App. P. § 2-109(D)(1)(f)
and (g) (rev. 2012) requires that factual recitations be anno-
tated to the record, whether they appear in the statement of
facts or the argument section of a brief. The failure to do so
may result in an appellate court’s overlooking a fact or oth-
erwise treating the matter under review as if the represented
fact does not exist. Sturzenegger v. Father Flanagan’s Boys’
Home, 276 Neb. 327, 754 N.W.2d 406 (2008). The absence
of these documents from our record is addressed further in
our analysis.
Third Action.
Jamie filed a “Complaint to Establish Paternity, Custody
& Support” against Eric in Sarpy County District Court on
March 5, 2013. Kenneth was not a party to the action. Eric
filed a motion to dismiss on March 15, alleging that a previ-
ous paternity action in Sarpy County had been dismissed with
prejudice, that a person not party to the action had signed an
acknowledgment of paternity, and that another paternity action
was pending against Eric by Jamie in Douglas County. On
March 29, the district court for Sarpy County dismissed the
complaint because “an action . . . filed in the District Court
[for] Sarpy County containing the same parties and the same
request for relief has been dismissed with prejudice.”
Current Action.
On August 20, 2013, Jamie filed a “Complaint to Rescind
Notarized Acknowledgement of Paternity and Complaint to
Establish Paternity” against both Kenneth and Eric in Sarpy
County District Court. According to this complaint, she
brought the action “to rescind the notarize[d] acknowledgment
of paternity signed by . . . Kenneth . . . , pursuant to Neb.
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Rev[.] Stat. §43-1409 [(Reissue 2008)], and to establish cus-
tody and support against . . . Eric.”
Jamie alleged two causes of action. Her first cause of
action alleged that “[d]ue to a material mistake of fact . . . ,
Kenneth . . . signed a notarized acknowledgment of paternity
at the birth of [Madison],” and that the time period for rescis-
sion had ended. Jamie also alleged a second cause of action,
seeking to establish Eric’s paternity as well as custody and
child support. Jamie prayed that the court enter an order
rescinding Kenneth’s notarized acknowledgment of paternity,
establish Eric as the father of Madison, and determine custody
and support.
Eric filed a motion to dismiss on September 26, 2013, based
upon the prior dismissals of the two other paternity actions
initiated in Sarpy County and the third action, initiated in
Douglas County. A hearing on Eric’s motion to dismiss was
held on October 21, and the court took the matter under advise-
ment. Although our record does not reveal the court’s specific
ruling on this motion, it is a moot issue in light of the court’s
later decision to dismiss Jamie’s claims against Eric pursuant
to his motion for summary judgment.
Jamie filed an amended complaint on October 28, 2013, con-
taining the same two causes of action as her initial complaint,
and added a third cause of action, alleging that “pursuant to
. . . §43-1409 and [Neb. Rev. Stat.] §43-1412.01 [(Reissue
2008)] the State of Nebraska is discriminating against indi-
viduals who have children born in wedlock and out of wed-
lock, thus violating [Jamie’s] equal protection rights under the
United States Constitution.”
On November 26, 2013, Eric filed a motion for summary
judgment, alleging that Jamie’s complaint “must be dismissed
with prejudice as res judicata.” On December 5, Kenneth filed
a motion for summary judgment. (Kenneth’s answer is not in
our record, but apparently both he and Jamie agreed that his
acknowledgment was a mistake and sought its rescission.) A
hearing on both motions was held on December 30.
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Cite as 23 Neb. App. 1
On January 29, 2014, the court entered an opinion and
order. In that order, the court found that Kenneth met his
burden to establish he signed the acknowledgment based on
fraud, duress, or material mistake of fact and that a DNA test
confirmed that Kenneth was not Madison’s biological father,
and the court granted his motion for summary judgment. The
court ordered that the acknowledgment of paternity signed by
Kenneth be rescinded.
The court next found that Eric did not meet his burden to
show he was entitled to summary judgment, because the first
action was a paternity action dismissed on the State’s motion
and the second was an action brought by Jamie in her own
name, while the present action was brought by Jamie on behalf
of Madison. The court also found there were genuine issues of
material fact precluding judgment as a matter of law.
On April 1, 2014, Eric again filed a motion for summary
judgment. Jamie filed an objection to this motion on April 8,
because Eric “already had his Motion for Summary Judgment
heard and denied.”
A hearing on Eric’s motion was held on April 11, 2014.
The court received into evidence Eric’s affidavit and certified
copies of the complaints and orders of dismissal from the first
action and third action, mentioned above.
The court entered an opinion and order on May 21, 2014,
granting Eric’s motion for summary judgment. The court
found that the instant case against Eric was barred both by
res judicata and by issue preclusion, because “[t]he issue of
paternity was previously brought in two Sarpy County cases
and a Douglas County case,” the allegations contained in
those cases were the same as in the instant case, and “[t]he
previous cases were all dismissed and the Sarpy [C]ounty
actions were dismissed with prejudice, a final judgment on
the merits.”
Jamie timely filed an appeal from the May 21, 2014, order.
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ASSIGNMENTS OF ERROR
Jamie assigns as error on appeal, summarized and restated,
that the district court erred (1) in granting Eric’s motion for
summary judgment and (2) in failing to hear her constitutional
claim of discrimination under the Equal Protection Clause.
STANDARD OF REVIEW
[3] The applicability of the doctrine of res judicata and the
applicability of claim preclusion are questions of law, as to
which we are obligated to reach a conclusion independent of
the determination reached by the court below. See Millennium
Laboratories v. Ward, 289 Neb. 718, 857 N.W.2d 304 (2014).
ANALYSIS
The problem in the instant case arose as a result of the
September 19, 2012, paternity action filed by the State on
behalf of Madison against Eric—despite Kenneth’s status as
Madison’s legal father—which action was dismissed “with
prejudice” pursuant to the State’s oral motion to dismiss (with-
out explanation or request that such dismissal be with preju-
dice). As a result of that dismissal and the court’s use of the
words “with prejudice,” Eric contends that all subsequent
actions against him to establish his paternity of Madison are
forever barred by res judicata; the district court agreed, dis-
missing the instant action on the grounds of res judicata and
issue preclusion. We begin by examining general res judicata
principles and whether the dismissal in the paternity action
filed by the State was actually an adjudication on the merits by
a court of competent jurisdiction.
[4] The doctrine of res judicata, or claim preclusion, bars
the relitigation of a matter that has been directly addressed or
necessarily included in a former adjudication if (1) the former
judgment was rendered by a court of competent jurisdiction,
(2) the former judgment was a final judgment, (3) the former
judgment was on the merits, and (4) the same parties or their
privies were involved in both actions. Young v. Govier &
Milone, 286 Neb. 224, 835 N.W.2d 684 (2013).
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Cite as 23 Neb. App. 1
There is no question that the same parties and privies were
involved in the current action and the previous two actions filed
in Sarpy County, by the State on behalf of Madison against
Jamie and Eric in 2012 and by Jamie on behalf of Madison
against Eric in March 2013. Both prior Sarpy County actions
sought to establish the paternity and support of Madison as to
Eric, as did the instant action. Those two prior actions were
final judgments, as both cases were dismissed by the district
court in which they were filed.
[5] To the extent that the district court and Eric took note
of another paternity action filed by Jamie against Eric in
Douglas County that was dismissed “without prejudice,” brief
for appellant at 7, our record contains no evidence of those
court proceedings. However, a dismissal “without prejudice”
would not have been a judgment on the merits for purposes of
res judicata. A dismissal without prejudice means that another
petition may be filed against the same parties upon the same
facts as long as it is filed within the applicable statute of limi-
tations. See Dworak v. Farmers Ins. Exch., 269 Neb. 386, 693
N.W.2d 522 (2005). Accordingly, the Douglas County action
has no bearing on our res judicata analysis and we focus
instead only on the two prior Sarpy County actions.
[6,7] We begin by considering whether the State’s 2012
action and Jamie’s March 2013 action were dismissed “on the
merits” by a court of competent jurisdiction. For purposes of
res judicata, the definition of a judgment on the merits is one
which is based on legal rights as distinguished from mere mat-
ters of practice, procedure, jurisdiction, or form. See Kerndt
v. Ronan, 236 Neb. 26, 458 N.W.2d 466 (1990). Res judicata
will not preclude a second suit between the same parties if the
forum in which the first action was brought did not have juris-
diction to adjudicate the action; stated another way, judgments
entered by a court without jurisdiction are void and subject to
collateral attack. Young, supra.
[8,9] In the first action, filed by the State, the State orally
moved that the referee dismiss its complaint. There is no indi-
cation as to why the State moved to dismiss or that it sought
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dismissal with prejudice. Nevertheless, the Sarpy County
District Court adopted the referee’s grant of the State’s motion
to dismiss—with prejudice. As a general rule, a dismissal with
prejudice is an adjudication on the merits. See Simpson v.
City of North Platte, 215 Neb. 351, 338 N.W.2d 450 (1983).
However, if the court did not have jurisdiction over the mat-
ter, res judicata would not preclude a second suit between the
same parties. See, Young, supra; Simpson, supra.
[10-12] Both the State’s action in 2012 and Jamie’s action
in March 2013 against Eric sought to establish his paternity
and support of Madison. However, glaringly absent from both
actions was the joinder of Kenneth as a party, who at the
time both of those actions were filed was the legal father of
Madison. Kenneth had signed a notarized acknowledgment of
paternity of Madison 2 days after her birth. A signed, nota-
rized acknowledgment of paternity may be rescinded within
the earlier of (1) 60 days or (2) the date of an administrative
or judicial proceeding relating to the child. See Neb. Rev.
Stat. § 43-1409 (Reissue 2008). After this rescission period
ends, a notarized acknowledgment “is considered a legal
finding.” See id. (emphasis supplied). The Nebraska Supreme
Court has interpreted this statutory section to mean that an
acknowledgment that has not been rescinded during one of the
time periods mentioned above “legally establishes paternity
in the person named in the acknowledgment as the father.”
Cesar C. v. Alicia L., 281 Neb. 979, 986, 800 N.W.2d 249,
255 (2011). There was no indication in this case that either
Jamie or Kenneth rescinded the acknowledgment within the
statutory rescission period, and no proceeding relating to
Madison was noted during the rescission period. Thus, at
the times the State initiated its proceedings against Eric in
September 2012 and Jamie initiated her proceedings against
Eric in March 2013, Kenneth’s notarized acknowledgment
had already legally established his paternity as to Madison.
In other words, the State and Jamie were attempting to estab-
lish paternity against another individual, without notice to or
inclusion of Madison’s legal father. Although the State filed
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its initial complaint to establish paternity against Eric after
genetic testing demonstrated that he was the biological father
and that Kenneth was not the biological father, “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.” State
on behalf of B.M. v. Brian F., 288 Neb. 106, 122, 846 N.W.2d
257, 268 (2014). Apparently, both the State and Jamie were
operating under an assumption that genetic testing alone was
sufficient to file a complaint for paternity against Eric—but
all the while, Kenneth was legally determined to be the father
of the child at issue. Kenneth’s status as Madison’s legal
father remained in full force and effect until the district court
in the instant case granted the acknowledgment’s rescission on
January 29, 2014.
[13-16] At no point prior to the instant case was Kenneth
made a party to any of the prior proceedings. The presence
of necessary parties is jurisdictional and cannot be waived by
the parties. See Pestal v. Malone, 275 Neb. 891, 750 N.W.2d
350 (2008). If necessary parties to a proceeding are absent,
the district court has no jurisdiction to determine the contro-
versy. Id. An indispensable party is one whose interest in the
subject matter of the controversy is such that the controversy
cannot be finally adjudicated without affecting the indispen
sable party’s interest, or which is such that not to address the
interest of the indispensable party would leave the contro-
versy in such a condition that its final determination may be
wholly inconsistent with equity and good conscience. Holste
v. Burlington Northern RR. Co., 256 Neb. 713, 592 N.W.2d
894 (1999). See, also, Neb. Rev. Stat. § 25-323 (Reissue
2008). “[I]t is clear that a dismissal based upon a failure to
join a necessary party is a dismissal of the action without
prejudice.” Carlson v. Allianz Versicherungs-AG, 287 Neb.
628, 639, 844 N.W.2d 264, 272 (2014), cert. denied ___ U.S.
___, 135 S. Ct. 437, 190 L. Ed. 2d 328. Thus, if Kenneth,
as Madison’s legal father, was a necessary party to the prior
actions filed by the State and Jamie against Eric, the dismiss-
als in those cases would not have been on the merits, but,
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rather, for the reason that those courts did not have jurisdic-
tion over the actions. And, as stated above, res judicata will
not preclude a second suit between the same parties if the
forum in which the first action was brought did not have
jurisdiction to adjudicate the action. See Young v. Govier &
Milone, 286 Neb. 224, 835 N.W.2d 684 (2013).
[17-19] Both parents and their children have cognizable
substantive due process rights to the parent-child relationship.
Stacy M. v. Jason M., 290 Neb. 141, 858 N.W.2d 852 (2015).
These rights protect 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 nur-
tured by a biological or adoptive parent. Id. The public policy
of this state provides that parents have a duty to support their
minor children until they reach majority or are emancipated.
See id. The obligation of support is a duty of a legally deter-
mined parent. Id. Kenneth, so long as he was established as
Madison’s legal father by virtue of his unrescinded acknowl-
edgment, had a right to the care, custody, and management of
Madison and also had a duty of support. See id. Any action
attempting to establish another person as Madison’s father
certainly would have impacted Kenneth’s rights and duties as
Madison’s legal father.
Other jurisdictions have held that the legal father of a child
is a necessary party to an action to determine paternity and
place support obligations on another man. For example, in
a case with strikingly similar facts to the instant case’s, In
re Paternity of K.L.O., 816 N.E.2d 906 (Ind. App. 2004), a
mother and her boyfriend executed a paternity affidavit when
the child was born, which execution legally established the
boyfriend as the child’s father. Later, the mother asked a sec-
ond man to take a paternity test, the results of which revealed
a probability of over 99 percent that he was the child’s bio-
logical father. The mother then filed a paternity action against
the biological father, but the trial court dismissed the action
because the boyfriend had not been joined as a party. The
mother filed a second paternity petition, alleging that the
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boyfriend was the child’s father, in an attempt to disestablish
the boyfriend’s paternity. The trial court dismissed the second
petition after a DNA test revealed that the boyfriend was not
the child’s biological father. The mother then filed a third peti-
tion to establish paternity, alleging for a second time that the
biological father was the child’s father. The biological father
filed a motion to dismiss the petition because the boyfriend
was a necessary party that had not been joined in the action,
which motion the trial court denied. However, on appeal, the
Indiana Court of Appeals reversed, concluding that the boy-
friend was still the child’s legal father, because the paternity
affidavit had not been rescinded or set aside. Thus, the boy-
friend at all times remained the legal father of the child and,
as such, should have been joined as a necessary party to the
biological father’s paternity action. Following that precedent,
in In re Paternity of N.R.R.L., 846 N.E.2d 1094 (Ind. App.
2006), the Indiana Court of Appeals held that a child’s legal
father (by virtue of execution of a paternity affidavit at the
child’s birth) was a necessary party to a paternity action filed
by the child’s biological father. The biological father had not
named the legal father as a party to the action; nor had he
shown that the legal father’s paternity affidavit had been set
aside or rescinded.
The Florida Supreme Court also has held that the legal
father of a child is an indispensable party to a paternity
action against another man. See Florida Dept. of Revenue
v. Cummings, 930 So. 2d 604 (Fla. 2006). In that case, the
State of Florida filed an action against the biological father
of a child without joining the child’s legal father (by virtue of
being married to the child’s mother at the time of the child’s
birth). The Florida Supreme Court reasoned that such a pater-
nity action would “‘certainly’ impact the legal father’s ability
to assert his right to a host of interests that lie at the heart
of the parent-child relationship”; it would affect the legal
father’s rights to the care, custody, and control of the child
and would remove his name from the child’s birth certificate.
Id. at 608. The court therefore concluded that a legal father’s
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material interests were necessarily impacted by the paternity
action filed by the State and that thus, he was an indispen
sable party.
[20] In the instant case, two Sarpy County paternity actions
were previously filed against Eric, one by the State and
one by Jamie, neither of which joined Kenneth as a party.
There was no way the trial court in either of those cases
could have decided the issue of Eric’s paternity and support
as to Madison without affecting the interests of Kenneth as
Madison’s legal father. As such, Kenneth was a necessary or
indispensable party to those actions. The presence of neces-
sary parties is jurisdictional and cannot be waived by the
parties. See Pestal v. Malone, 275 Neb. 891, 750 N.W.2d 350
(2008). If necessary parties to a proceeding are absent, the
district court has no jurisdiction to determine the controversy.
Id. Because Kenneth was a necessary party who was not
joined to the previous actions, the court in both prior actions
did not have jurisdiction over the actions. Res judicata will
not preclude a second suit between the same parties if the
forum in which the first action was brought did not have
jurisdiction to adjudicate the action. See Young v. Govier &
Milone, 286 Neb. 224, 835 N.W.2d 684 (2013). As such, the
instant action against Eric was not barred by res judicata and
the district court erred in dismissing Jamie’s complaint for
paternity against Eric.
[21-24] The district court also concluded that the instant
action was barred by issue preclusion. Issue preclusion bars
the relitigation of a finally determined issue that a party had a
prior opportunity to fully and fairly litigate. Hara v. Reichert,
287 Neb. 577, 843 N.W.2d 812 (2014). Issue preclusion
applies where (1) an identical issue was decided in a prior
action, (2) the prior action resulted in a final judgment on
the merits, (3) the party against whom the doctrine is to be
applied was a party or was in privity with a party to the prior
action, and (4) there was an opportunity to fully and fairly liti-
gate the issue in the prior action. Id. Issue preclusion applies
only to issues actually litigated. Id. Issue preclusion protects
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litigants from relitigating an identical issue with a party or his
privy and promotes judicial economy by preventing needless
litigation. Id. As discussed above, because Kenneth was not
joined as a party to any of the prior actions to establish Eric’s
paternity and because Kenneth’s acknowledgment of paternity
had not been rescinded, there was not an opportunity to fully
and fairly litigate the issue of Eric’s paternity in the prior
actions. We thus conclude the instant action against Eric is not
barred by issue preclusion.
[25] In light of our conclusions that the district court erred
in granting summary judgment in favor of Eric and that the
cause must be remanded for further proceedings, we need not
address Jamie’s remaining assignment of error regarding the
court’s failure to address her constitutional claim. An appellate
court is not obligated to engage in an analysis which is not
needed to adjudicate the controversy before it. Papillion Rural
Fire Prot. Dist. v. City of Bellevue, 274 Neb. 214, 739 N.W.2d
162 (2007).
CONCLUSION
Because Kenneth was previously established as Madison’s
legal father but was not joined in any of the prior paternity
actions filed against Eric, the dismissals in those cases were
not on the merits by a court of competent jurisdiction, and thus,
res judicata and issue preclusion did not bar the current action
to establish paternity of Madison as to Eric once Kenneth’s
acknowledgment was rescinded. We therefore reverse the
court’s entry of summary judgment and remand the cause for
further proceedings against Eric. Eric’s motion for attorney
fees on appeal is overruled.
R eversed and remanded for
further proceedings.