Alisha C. v. Jeremy C.

CONCLUSION
We find that Ellis should be and hereby is disbarred from
the practice of law in Nebraska, effective immediately. Ellis is
hereby ordered to comply with all terms of Neb. Ct. R. § 3-316
forthwith and shall be subject to punishment for contempt of
this court upon failure to do so. Ellis is also directed to pay costs
and expenses in accordance with Neb. Rev. Stat. §§ 7-114 and
7-115 (Reissue 2007) and Neb. Ct. R. §§ 3-310(P) and 3-323
within 60 days after an order imposing costs and expenses, if
any, is entered by this court.
Judgment of disbarment.
alisha C., appellee , v.
Jeremy C., appellant.
808 N.W.2d 875
Filed February 24, 2012. 	No. S-11-233.
1. Statutes: Judgments: Appeal and Error. The meaning of a statute is a question
of law, which an appellate court resolves independently of the trial court.
2. 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, and this presumption may be rebut-
ted only by clear, satisfactory, and convincing evidence.
3. Jurisdiction: Divorce: Paternity: Child Support. The district court has juris-
diction to determine whether the husband is the biological father of a child to be
supported as a result of a dissolution decree.
4. 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.
5. Divorce: Paternity: Child Support: Res Judicata. A dissolution decree that
orders child support is res judicata on the issue of paternity.
6. Divorce: Modification of Decree: 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.
7. Statutes. Statutes relating to the same subject are in pari materia and should be
construed together.
8. ____. A statute is not to be read as if open to construction as a matter of course.
9. ____. If the language of a statute is clear, the words of such statute are the end of
any judicial inquiry regarding its meaning.
340 	283 NEbRASkA REPORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

10. ____. In the absence of ambiguity, courts must give effect to statutes as they
are written.
11. Statutes: Legislature: Presumptions. In enacting a statute, the Legislature must
be presumed to have knowledge of all previous legislation upon the subject.
12. 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.
13. Statutes: Legislature: Public Policy. It is properly the function of the Legislature
through the enactment of statutes to declare what is the law and public policy of
this state.
Appeal 	from 	the 	District 	Court 	for 	Lancaster 	County:
robert r. otte, Judge. Reversed and remanded for further
proceedings.
James H. Hoppe and Jerrod P. Jaeger for appellant.
kevin Ruser, of University of Nebraska Civil Clinical Law
Program, and Troy J. bird and Austin A. Leighty, Senior
Certified Law Students, for appellee.
heaviCan, C.J., C onnolly, gerrard, stephan, mCC ormaCk ,
and miller-lerman, JJ.
mCC ormaCk , J.
I. NATURE OF CASE
Jeremy C. and Alisha C. were married in September 2001.
by 2006, they were separated. Throughout their separation,
they would periodically reunite, only to separate again. One
such reunion occurred on February 14, 2007.
In March 2007, Alisha discovered that she was pregnant and
that the baby had been conceived sometime around February
14. Alisha did not recall having intercourse with anyone other
than Jeremy during the period of conception. She was recover-
ing from a methamphetamine addiction, however, and testified
that this affected her memory.
Alisha informed Jeremy that he was going to be a father.
When Jeremy expressed doubts about his paternity, Alisha told
him she was “110 percent sure” he was the father because she
had been with no one else during that time. Alisha told Jeremy
that if he did not believe her, he could get a paternity test once
ALISHA C. v. JEREMy C. 	341
Cite as 283 Neb. 340

the baby was born. Jeremy, however, lacked the funds to pay
for genetic testing.
brady C. was born in November 2007. After further reassur-
ances from Alisha that she was “110 percent sure” he was the
father, and inquiries into whether the child looked like him,
Jeremy signed the birth certificate as brady’s father. Jeremy
was not asked to sign a notarized acknowledgment of paternity
as described by Neb. Rev. Stat. § 43-1408.01 (Reissue 2008).
After brady’s birth, Jeremy saw brady approximately once a
week. He still had doubts as to whether he was brady’s father,
but Alisha continuously assured him that he was.
In January 2009, Alisha filed for dissolution of the marriage.
On August 11, Jeremy signed a property settlement and cus-
tody agreement which had attached to it a parenting plan. The
agreement referred to brady as “the minor child of the parties.”
Jeremy agreed to visitation with brady one evening a week and
on Jeremy’s birthday and Father’s Day. Jeremy agreed to pay
$498 per month in child support commencing August 1 and to
be responsible for 70 percent of childcare expenses. He agreed
to pay brady’s health insurance in the event Medicaid coverage
became unavailable.
The 	district 	court 	entered 	a 	decree 	of 	dissolution 	on
September 17, 2009, when brady was almost 2 years old.
Jeremy was not present or represented at the dissolution hear-
ing, but he had previously entered a voluntary appearance on
January 28, 2009. The court noted that one child, brady, was
born as issue of the marriage. The court found the terms and
provisions of the property settlement and custody agreement
to be fair and equitable and incorporated the provisions of the
agreements into its decree of dissolution.
Approximately 1 month later, Jeremy’s mother agreed to pay
for a paternity test. The test was conducted shortly thereafter,
and the parties agree the test demonstrated that Jeremy is not
brady’s biological father. On November 17, 2009, 61 days after
the dissolution decree, Jeremy filed a “Complaint to Set Aside
Legal Determination of Paternity.” The determination of pater-
nity referred to in the complaint was the decree of dissolution.
Jeremy alleged that a decree modifying or setting aside the
custody and child support order was warranted on the grounds
342 	283 NEbRASkA REPORTS

of fraud or newly discovered evidence, or under the provisions
of Neb. Rev. Stat. §§ 43-1401 to 43-1418 (Reissue 2008).
The district court denied the complaint. The court found
that the evidence did not support a claim of fraud and that
the claim of newly discovered evidence did not afford relief
because Jeremy failed to exercise due diligence in raising the
issue of paternity in a timely manner. The court found that the
provisions of §§ 43-1401 to 43-1418 did not apply as a matter
of law to a child born during the course of a marriage. An order
of garnishment in aid of execution of Jeremy’s child support
obligations was issued in March 2010.
Jeremy appeals the district court’s February 18, 2011, order
denying his “Complaint to Set Aside Legal Determination of
Paternity,” insofar as it sought relief under § 43-1412.01.
II. ASSIGNMENT OF ERROR
Jeremy assigns that the district court erred in finding that
§§ 43-1401 to 43-1418 do not apply to minor children born
during a marriage.
III. STANDARD OF REVIEW
[1] The meaning of a statute is a question of law, which an
appellate court resolves independently of the trial court.1
IV. ANALySIS
The sole issue in this appeal is whether the disestablishment
of paternity provision, § 43-1412.01, applies to adjudicated
fathers who were married to the child’s biological mother at the
time of conception. This presents an issue of first impression for
our court. To better understand the arguments currently before
us, we explore the law before the passage of § 43-1412.01, the
statutory scheme in which § 43-1412.01 is found, and similar
statutory provisions in other states.
1. nebraska law before passage of § 43-1412.01
(a) Presumption of Paternity
[2] Under Nebraska common law, later embodied in Neb.
Rev. Stat. § 42-377 (Reissue 2008), legitimacy of children born
1 J.M. v. Hobbs, 281 Neb. 539, 797 N.W.2d 227 (2011).
ALISHA C. v. JEREMy C. 	343
Cite as 283 Neb. 340

during wedlock is presumed. This presumption may be rebut-
ted only by clear, satisfactory, and convincing evidence.2 The
testimony or declaration of a husband or wife is not competent
to challenge the paternity of a child.3
The marital presumption of paternity has a long history that
derives from what became known as Lord Mansfield’s Rule.
At a time when biological paternity was difficult to establish,4
Lord Mansfield’s Rule protected children from illegitimacy
by assuming a child born during the marriage belonged to the
husband and prohibiting the husband and wife from testifying
against each other to overcome this presumption.5
With the advent of genetic testing, this marital presumption
of paternity can now be overcome by scientifically reliable evi-
dence that the husband is not the biological father of the child.6
Genetic testing can also establish paternity of children born out
of wedlock.7
(b) Dissolution Decrees and Res Judicata
[3] The parentage of a child born during a marriage is tra-
ditionally contested, if at all, in dissolution proceedings.8 The
marital presumption of paternity can be rebutted at that time.9
The district court has jurisdiction to determine whether the
husband is the biological father of a child to be supported as a
result of a dissolution decree.10
2 See, Helter v. Williamson, 239 Neb. 741, 478 N.W.2d 6 (1991); Perkins v.
Perkins, 198 Neb. 401, 253 N.W.2d 42 (1977).
3 Id.
4 Jana Singer, Marriage, Biology, and Paternity: The Case for Revitalizing
the Marital Presumption, 65 Md. L. Rev. 246 (2006).
5 kristen k. Jacobs, If the Genes Don’t Fit: An Overview of Paternity
Disestablishment Statutes, 24 J. Am. Acad. Matrim. Law. 249 (2011) (cit-
ing Goodright v. Moss, (1777) 98 Eng. Rep. 1257 (k.b.); 2 Cowp. 591).
6 See, e.g., Quintela v. Quintela, 4 Neb. App. 396, 544 N.W.2d 111 (1996).
7 See § 43-1412.
8 See, Ford v. Ford, 191 Neb. 548, 216 N.W.2d 176 (1974); Houghton v.
Houghton, 179 Neb. 275, 137 N.W.2d 861 (1965). See, also, Schmidt v.
State, 110 Neb. 504, 194 N.W. 679 (1923).
9 See id.
10 Younkin v. Younkin, 221 Neb. 134, 375 N.W.2d 894 (1985).
344 	283 NEbRASkA REPORTS

[4] Even if paternity is not directly placed in issue or liti-
gated by the parties to a dissolution proceeding, any dissolu-
tion decree which orders child support implicitly makes a final
determination of paternity.11 When the parties fail to submit
evidence at the dissolution proceeding rebutting the presump-
tion of paternity, the dissolution court can find paternity based
on the presumption alone. In DeVaux v. DeVaux,12 we explained
that a trial court necessarily makes such a finding when it
orders child support, for “the trial court could not have ordered
child support without finding that [the presumed father] was
the father of the child.”
[5] As a result, any dissolution decree that orders child sup-
port is res judicata on the issue of paternity.13 Under common
law, it cannot be relitigated except under very limited cir-
cumstances through a motion to vacate or modify the decree.
Accordingly, in DeVaux, we held that the district court erred
in failing to grant the ex-husband’s demurrer to the mother’s
application to modify the decree to reflect that the ex-husband
was not the child’s biological father.14 As a matter of policy,
we said: “‘There is no more forceful example of the ration-
ale underlying the requirement of finality of judgments than
the chaos and humiliation which would follow from allow-
ing [persons] to challenge, long after a final judgment has
been entered, the legitimacy of children born during their
marriages.’”15
A party to any final judgment can make a motion to vacate
or modify the judgment on the grounds of fraud by the suc-
cessful party or “newly discovered material evidence which
11 DeVaux v. DeVaux, 245 Neb. 611, 514 N.W.2d 640 (1994). but see, R.E.
v. C.E.W., 752 So. 2d 1019 (Miss. 1999); Cornelius v. Cornelius, 15 P.3d
528 (Okla. Civ. App. 2000); McDaniels v. Carlson, 108 Wash. 2d 299, 738
P.2d 254 (1987).
12 DeVaux v. DeVaux, supra note 11, 245 Neb. at 616, 514 N.W.2d at 644.
See, also, Cross v. Perreten, 257 Neb. 776, 600 N.W.2d 780 (1999).
13 See DeVaux v. DeVaux, supra note 11.
14 Id.
15 DeVaux v. DeVaux, supra note 11, 245 Neb. at 619-20, 514 N.W.2d at 646
(quoting Hackley v Hackley, 426 Mich. 582, 395 N.W.2d 906 (1986)).
ALISHA C. v. JEREMy C. 	345
Cite as 283 Neb. 340

could neither have been discovered with reasonable diligence
before trial nor have been discovered with reasonable diligence
in time to move for a new trial.”16 but the standard for show-
ing fraud or newly discovered evidence is high. In DeVaux,
we explained that the mother’s awareness of her extramarital
sexual relations meant that she could not file a successful
motion for new trial on the basis of newly discovered evidence
that her former husband was not the biological father of her
child. Neither the mother’s former ignorance of blood test-
ing availability nor her belated realization regarding possible
parentage was sufficient to show due diligence as required
for a motion for new trial.17 “‘[R]easonable diligence,’” we
explained, “means appropriate action where there is some
reason to awaken inquiry and direct diligence in a channel in
which it will be successful.”18
Similarly, to demonstrate fraud, the party seeking to set aside
the judgment must prove that he or she exercised due diligence
at the former trial and was not at fault or negligent in the fail-
ure to secure a just decision.19 In In re Estate of West,20 we said
that in order to vacate a judgment or order under § 25-2001(4)
because of fraud, the movant must prove: (1) the judgment or
order has been obtained or produced through fraud; (2) it is
inequitable or against good conscience to enforce the judgment
or order; (3) failure to secure a just decision is not the result
of the vacating party’s fault, neglect, or lack of diligence; and
(4) the party seeking to vacate has exercised due diligence in
discovering the fraud which resulted in the judgment or order
in question.
In McCarson v. McCarson,21 we reversed the trial court’s
grant of summary judgment in favor of the ex-husband who
sought to modify a dissolution decree and child support order,
16 See Neb. Rev. Stat. § 25-2001(4)(c) (Reissue 2008).
17 DeVaux v. DeVaux, supra note 11.
18 Id. at 623, 514 N.W.2d at 648.
19 See Nielsen v. Nielsen, 275 Neb. 810, 749 N.W.2d 485 (2008).
20 In re Estate of West, 226 Neb. 813, 415 N.W.2d 769 (1987).
21 McCarson v. McCarson, 263 Neb. 534, 641 N.W.2d 62 (2002).
346 	283 NEbRASkA REPORTS

on the basis of fraud, to reflect he was not the child’s father.
The dissolution decree had been entered after a voluntary
appearance, but while the ex-husband was stationed in Japan.
The ex-husband, who was not represented by counsel, signed
the decree. It was undisputed that the ex-wife committed fraud
insofar as she knew at the time of filing for dissolution that the
child was not her husband’s. yet she did not reveal that infor-
mation to the court or to her husband.
Nevertheless, we found that the ex-husband did not make a
successful claim of fraud, because he failed to rebut evidence
introduced by the ex-wife that he knew or should have known
he was not the child’s biological father.22 This evidence con-
sisted of the ex-husband’s previous initiation of a “punishment
proceeding” against the ex-wife for adulterous conduct.23 Also,
the ex-wife submitted an affidavit in which she testified that
the ex-husband had told her many times he knew the child
could not be his. Finally, in a previously dismissed petition
for dissolution filed by the ex-husband shortly after the child’s
birth, the ex-husband alleged he was not the child’s biologi-
cal father.
Concurrent independent equity jurisdiction allows the court
to modify its own decrees, but such authority is similarly rarely
utilized.24 Where a party to a divorce action, represented by
counsel, voluntarily executes a property settlement agreement
which is approved by the court and incorporated into a divorce
decree from which no appeal is taken, ordinarily the decree
will not thereafter be vacated or modified, in the absence
of fraud or gross inequity.25 There are no published cases in
Nebraska where a paternity determination in a dissolution and
support decree was set aside under the court’s independent
equity jurisdiction.
22 Id.
23 Id. at 542, 641 N.W.2d at 70.
24 See, DeVaux v. DeVaux, supra note 11; Portland v. Portland, 5 Neb. App.
364, 558 N.W.2d 605 (1997).
25 See, Pascale v. Pascale, 229 Neb. 49, 424 N.W.2d 890 (1988); Klabunde v.
Klabunde, 194 Neb. 681, 234 N.W.2d 837 (1975).
ALISHA C. v. JEREMy C. 	347
Cite as 283 Neb. 340

2. § 43-1412.01
[6] Subsequent to our decisions in McCarson and DeVaux,
the Legislature passed 2008 Neb. Laws, L.b. 1014. Section
43-1412.01, derived from that bill, provides a means to “set
aside” a “final” legal determination of paternity, including
an obligation to pay child support. Section 43-1412.01 thus
clearly 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. The question is
whether an adjudicated father who was married to the child’s
biological mother at the time of conception may take advantage
of the provisions of § 43-1412.01.
Section 43-1412.01 states in full:
An individual may file a complaint for relief and the
court may set aside a final judgment, court order, admin-
istrative order, obligation to pay child support, or any
other legal determination of paternity if a scientifically
reliable genetic test performed in accordance with sec-
tions 43-1401 to 43-1418 establishes the exclusion of the
individual named as a father in the legal determination.
The court shall appoint a guardian ad litem to represent
the interest of the child. The filing party shall pay the
costs of such test. 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. No support order may be retroactively
modified, but may be modified with respect to any period
during which there is a pending complaint for relief from
a determination of paternity under this section, but only
from the date that notice of the complaint was served
on the nonfiling party. A court shall not grant relief
from determination of paternity if the individual named
as father (1) completed a notarized acknowledgment of
paternity pursuant to section 43-1408.01, (2) adopted the
child, or (3) knew that the child was conceived through
artificial insemination.
It is conceded that Jeremy does not fall under any of the three
exclusions set forth in § 43-1412.01. Most notably, Jeremy did
348 	283 NEbRASkA REPORTS

not sign a notarized acknowledgment of paternity. The statute
itself is broadly worded as applicable to “[a]n individual,” who
“may file a complaint for relief and the court may set aside a
final judgment, court order, administrative order, obligation to
pay child support, or any other legal determination of pater-
nity.” Nevertheless, Alisha argues we should read § 43-1412.01
as applying only to legally determined fathers who were not
married to the child’s mother at the time of conception or birth.
Stated differently, Alisha believes that § 43-1412.01 applies
to paternity determinations concerning only out-of-wedlock
children. She argues it has no applicability to determinations of
paternity regarding children born during a marriage.
In making this argument, Alisha relies on the applicable def-
initions section of the statutory scheme in which § 43-1412.01
is found. Those definitions, adopted in 1941 and last modi-
fied in 1994, state that “[f]or purposes of sections 43-1401 to
43-1418,” a “[c]hild shall mean a child under the age of eight-
een years born out of wedlock.”26 Further, a
[c]hild born out of wedlock shall mean a child whose par-
ents were not married to each other at the time of birth,
except that a child shall not be considered as born out of
wedlock if its parents were married at the time of its con-
ception but divorced at the time of its birth.27
While § 43-1412.01 admittedly makes no reference to the
term “child” as such, Alisha argues we must read § 43-1412.01
in pari materia28 with the definitions section. Doing so, we
must exclude its application to paternity determinations that
were not of a “child” as defined in § 43-1401(1). Alisha points
out that the final reading of L.b. 1014 includes the provision
that “[t]he Revisor of Statutes shall assign . . . section 47 of
this act within sections 43-1401 to 43-1418 and any reference
to such sections shall be deemed to include section 47 of this
act . . . .”29 Thus, Alisha argues it was the Legislature’s intent
26 § 43-1401(1).
27 § 43-1401(2).
28 See Mahnke v. State, 276 Neb. 57, 751 N.W.2d 635 (2008).
29 2008 Neb. Laws, L.b. 1014, § 73, p. 702.
ALISHA C. v. JEREMy C. 	349
Cite as 283 Neb. 340

that § 43-1412.01 be viewed as part of a statutory scheme
which deals exclusively with out-of-wedlock births and sim-
ply has no applicability to children born or conceived during
a marriage.
(a) Statutory Scheme
We agree that many of the provisions of §§ 43-1401 to
43-1418 concern the child support obligations of the “father
of a child whose paternity is established either by judicial pro-
ceedings or by acknowledgment.”30 Many of the statutes pro-
vide a means of establishing paternity of “a child.”31 And they
are meant to establish liability for the child’s support “in the
same manner as the father of a child born in lawful wedlock is
liable for its support.”32 Many of these provisions were enacted
before genetic testing became the principal means of establish-
ing paternity. In 1984, the Legislature passed additional provi-
sions relating to genetic testing “[i]n any proceeding to estab-
lish paternity . . . .”33 Section 43-1414 states that the court, on
its own motion, or upon request by a party, the Department of
Health and Human Services, or other authorized attorney, shall
require “the child, the mother, and the alleged father to submit
to genetic testing.”34 The cost of the testing is borne by the
requesting party, and if testing is by the court’s own motion,
the assessment of cost is determined by the court.35 Additional
laws were passed in 1994 requiring hospital officials to pre-
sent an unwed mother and the child’s father, if readily avail-
able, with documents and written instructions for a notarized
acknowledgment of paternity. Some of these provisions were
intended to comply with federal welfare reform which required
expedited procedures for establishing support obligations on
out-of-wedlock fathers.36
30 § 43-1402 (emphasis supplied).
31 See §§ 43-1402, 43-1403, 43-1406, 43-1407, 43-1408.01, and 43-1411.
32 § 43-1402.
33 § 43-1414(1). See, also, §§ 43-1414 to 43-1418.
34 § 43-1414(1) and (2).
35 § 43-1418.
36 See 42 U.S.C. § 666 (2006).
350 	283 NEbRASkA REPORTS

Section 43-1409 states that the signatory to a notarized
acknowledgment of paternity can rescind the acknowledgment
within the earlier of 60 days or the date of an administrative or
judicial proceeding relating to the child, including a proceed-
ing to establish a support order. After the rescission period, the
acknowledgment becomes a legal finding which may be chal-
lenged only on the basis of fraud, duress, or material mistake
of fact, with the burden of proof upon the challenger.37
(b) Virginia Has Language Similar
to That of § 43-1412.01
Section 43-1412.01 is one of the most recent additions to the
paternity laws in Nebraska. The legislative history pertaining
to § 43-1412.01 is not helpful. We observe, however, that the
language of § 43-1412.01 appears to have been modeled after
a Virginia statute adopted in 2001. Va. Code Ann. § 20-49.10
(2008) states in full:
An individual may file a petition for relief and, except
as provided herein, the court may set aside a final judg-
ment, court order, administrative order, obligation to pay
child support or any legal determination of paternity if
a scientifically reliable genetic test performed in accord-
ance with this chapter establishes the exclusion of the
individual named as a father in the legal determination.
The court shall appoint a guardian ad litem to represent
the interest of the child. The petitioner shall pay the
costs of such test. A court that sets aside a determina-
tion 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. No support order may be
retroactively modified, but may be modified with respect
to any period during which there is a pending petition for
relief from a determination of paternity, but only from
the date that notice of the petition was served on the
nonfiling party.
37 § 43-1409.
ALISHA C. v. JEREMy C. 	351
Cite as 283 Neb. 340

A court shall not grant relief from determination of
paternity if the individual named as father (i) acknowl-
edged paternity knowing he was not the father, (ii) adopted
the child, or (iii) knew that the child was conceived
through artificial insemination.
Few opinions have been issued in Virginia interpreting
§ 20-49.10, and no reported decision in Virginia has involved
the issue of disestablishment of a presumed father’s paternity.
However, in 2004, the Circuit Court of Virginia, Spotsylvania
County, determined in an unreported decision that the paternity
of a child born within wedlock and established by a dissolution
and support decree could be set aside under § 20-49.10.38 In
Taylor v. Taylor,39 after a de novo hearing, the court reversed
the juvenile court’s determination that the presumed father of a
12-year-old child should not be granted relief from child sup-
port obligations pursuant to § 20-49.10. Although the dissolu-
tion decree and award of child support were res judicata, the
court found that § 20-49.10 granted relief and allowed further
exploration of the issue of paternity when a scientifically reli-
able genetic test established that the petitioner was excluded as
the father. The court observed that this statutory avenue to set
aside the final determination of paternity appeared applicable
“regardless of lapse of time.”40
The court also observed that the statute stated a court
“‘may’” set aside an earlier paternity adjudication.41 The parties
agreed the statute thereby required consideration of the child’s
best interests before setting aside a paternity determination.
The court ultimately found that the paternity determination
should be set aside and the child support obligation terminated.
The court considered the totality of the circumstances and the
38 Taylor v. Taylor, Nos. CH03-926, CH03-929, 2004 WL 1462261 (Va. Cir.
June 3, 2004) (unpublished opinion). See, also, Melanie b. Jacobs, My
Two Dads: Disaggregating Biological and Social Paternity, 38 Ariz. St.
L.J. 809 (2006).
39 Taylor v. Taylor, supra note 38.
40 Id., 2004 WL 1462261 at *1.
41 Id.
352 	283 NEbRASkA REPORTS

fact that genetic tests conclusively showed that the petitioner
was not the father of the child. The court stated that the ex-
husband’s decision “to allow his anger at [his ex-wife] to dis-
rupt his relationship with this 12-year-old boy” was “unfortu-
nate,” but it also noted that the ex-husband had already ceased
all contact with the boy.42 The court concluded that “refusing
to grant [the ex-husband] the statutory relief will not of itself
mend the broken bond, nor will it magically create a father-son
relationship that does not exist.”43
(c) Reading § 43-1412.01
[7-10] We find that the plain language of § 43-1412.01
similarly indicates a broad application that encompasses pater-
nity determinations of children born during a marriage. While
statutes relating to the same subject are in pari materia and
should be construed together,44 we do not view § 43-1412.01
as open to construction. A statute is not to be read as if open to
construction as a matter of course.45 If the language of a statute
is clear, the words of such statute are the end of any judicial
inquiry regarding its meaning.46 In the absence of ambiguity,
courts must give effect to statutes as they are written.47
On its face, § 43-1412.01 broadly applies to “[a]n indi-
vidual.” It plainly encompasses setting aside “a final judgment,
court order, administrative order, obligation to pay child sup-
port, or any other legal determination of paternity if a scien-
tifically reliable genetic test performed in accordance with
sections 43-1401 to 43-1418 establishes the exclusion of the
individual named as a father in the legal determination.” We
42 Id. at *2.
43 Id.
44 See Mahnke v. State, supra note 28.
45 State ex rel. Wagner v. Gilbane Bldg. Co., 276 Neb. 686, 757 N.W.2d 194
(2008).
46 Davio v. Nebraska Dept. of Health & Human Servs., 280 Neb. 263, 786
N.W.2d 655 (2010).
47 Estate of McElwee v. Omaha Transit Auth., 266 Neb. 317, 664 N.W.2d
461 (2003); City of Omaha v. Kum & Go, 263 Neb. 724, 642 N.W.2d 154
(2002).
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have said that a dissolution decree which orders child support
is a legal determination of paternity.48
[11] And it is precisely because many other paternity stat-
utes expressly refer to “a child”—defined as a child born out
of wedlock in § 43-1401(1)—that it is significant § 43-1412.01
does not use that term. In enacting a statute, the Legislature
must be presumed to have knowledge of all previous legisla-
tion upon the subject.49 The Legislature is also presumed to
know the language used in its statutes, and if a subsequent act
on the same or similar subject uses different terms in the same
connection, the court must presume that a change in the law
was intended.50 The Legislature, fully cognizant of the other
paternity statutes, could have easily limited the applicability of
§ 43-1412.01 to children born out of wedlock in any number
of ways. The statute could have said it was applicable to “[a]n
individual” who has been adjudicated as the father of “a child.”
It could have limited disestablishment to setting aside “a final
judgment, court order, administrative order, obligation to pay
child support, or any other legal determination of paternity” of
“a child.” It could have limited the statute’s scope to an adju-
dicated father of “a child.” It instead stated broadly that it was
applicable to “[a]n individual” seeking to set aside “any” legal
determination of paternity. We cannot read into the statute a
limitation which plainly is not there.
We further observe that if § 43-1412.01 is not applicable
to adjudicated fathers of children born during a marriage, it is
unclear to whom it would apply. As discussed, § 43-1412.01
does not apply to fathers by notarized acknowledgment. Indeed,
in Cesar C. v. Alicia L.,51 we held that a mother in a custody
dispute could not introduce evidence negating the paternity of
a father who had signed a notarized acknowledgment. And we
48 See, e.g., DeVaux v. DeVaux, supra note 11; Snodgrass v. Snodgrass, 241
Neb. 43, 486 N.W.2d 215 (1992).
49 Bass v. Saline County, 171 Neb. 538, 106 N.W.2d 860 (1960).
50 See Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807
(2006).
51 Cesar C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (2011).
354 	283 NEbRASkA REPORTS

said that “‘“it would be unreasonable to allow a man . . . to
undo his voluntary acknowledgment years later . . . when his
paternity was based not on a mere marital presumption that he
was the child’s father but on the conscious decision to accept
the legal responsibility of being the child’s father.”’”52
Paternity of out-of-wedlock children is usually established
through DNA testing. Although there are other procedures for
establishing paternity of out-of-wedlock children, it is hard to
imagine, as a practical matter, a circumstance after 2008 in
which an out-of-wedlock child’s paternity would be established
by means other than notarized acknowledgment or genetic test-
ing. In fact, procedures for using genetic testing to establish
paternity were enacted in 1984, rendering it unlikely that the
biological relationship of any child currently the subject of a
child support order was not established by those means.
Thus, the only people for whom genetic testing would likely
disestablish paternity under § 43-1412.01 are those men whose
paternity was decreed in a dissolution order based on the pre-
sumption of paternity and without resort to genetic testing.
If § 43-1412.01 were read as inapplicable to those presumed
fathers, it would be largely meaningless.
We can presume that the Legislature, having already written
a limited procedure for setting aside notarized acknowledgment
of paternity, sought to provide a means of relief for other kinds
of adjudicated fathers. The legislative history, sparse as it is,
lends support to our reading of the statute as being applicable
to both adjudicated fathers who were married to the child’s
mother and those who were not. The legislative history refers
broadly to “individual[s]” who may seek relief under the stat-
ute in the same manner as the statute does itself.53
Furthermore, the Legislature is deemed to be aware of
existing Supreme Court precedent when it enacts legislation.54
52 Id. at 990, 800 N.W.2d at 257 (emphasis supplied) (quoting In re Parentage
of G.E.M., 382 Ill. App. 3d 1102, 890 N.E.2d 944, 322 Ill. Dec. 25
(2008)).
53 L.b. 1014, § 47, p. 687.
54 In re Interest of Antone C. et al., 12 Neb. App. 466, 677 N.W.2d 190
(2004).
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It is reasonable to surmise that the Legislature, in enacting
§ 43-1412.01, sought to provide a possible remedy to ex-
husbands like the one in McCarson55 and like the present appel-
lant—men with no biological ties to the child who have become
bound by a final child support determination as a result of
ignorance of the law and transient wishful thinking.
We see no reason why the common-law presumption of
paternity is inconsistent with our reading of § 43-1412.01 as
being broadly applicable to men who were married to the bio-
logical mother at conception. Generally, statutes which effect
a change in the common law are to be strictly construed.56
but even if § 43-1412.01 were open to construction, the pre-
sumption does not mean that fathers of children born during a
marriage have more value than those of children born out of
wedlock. In other words, the presumption does not indicate
that adjudicated fathers who were married to the biological
mother should be bound by final adjudications of paternity,
while fathers of children born out of wedlock should not. The
presumption of paternity merely creates a default assumption
absent sufficient evidence to the contrary. And § 43-1412.01
effects no change in that presumption or the kind of evidence
deemed sufficient to overcome the presumption.
We observe that the presumption of paternity has never been
placed on all men who had sexual relations with the child’s
mother around the time of conception, presumably because
it would be impractical to do so. but genetic testing can now
relieve presumed fathers of their traditional support obliga-
tions, while at the same time imposing support obligations on
men who engaged in out-of-wedlock relations which resulted
in the child’s conception. While the presumption of paternity
has not changed, its role in protecting children has become less
vital with the advent of genetic testing and the shifting focus of
the law from marital to biological ties.57
55 McCarson v. McCarson, supra note 21.
56 State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009).
57 See Jacobs, supra note 5.
356 	283 NEbRASkA REPORTS

(d) Other Jurisdictions
Disestablishment of paternity statutes allowing courts to set
aside paternity determinations for children born during a mar-
riage are not uncommon. Several states have adopted disestab-
lishment of paternity statutes which explicitly allow men to ask
a court to set aside a final adjudication based on the marital
presumption of paternity.58 Some other states’ statutes do not
explicitly include paternity determinations of children born
during a marriage, but are interpreted as including presumed
fathers under the broad language of the statutes.59
Such statutes have largely been in response to a “disestablish-
ment movement” which began after high profile cases in which
men felt defrauded by the child support system which forced
them to support children they were not genetically related to.60
However, they represent a “wide variety of approaches and
vary in terms such as time limits, standing, requirements for
filing, allotted discretion of the court, and the statutes’ effects
on child support regarding past and future obligations.”61
For instance, Oregon sets forth a 1-year statute of limita-
tions for any disestablishment action when the original pater-
nity determination was the result of neglect, and 1 year from
the discovery of fraud or other misconduct if the original
determination was obtained by fraud, misrepresentation, or
58 See, Iowa Code Ann. § 600b.41A (West Cum. Supp. 2011); Mo. Ann.
Stat. § 210.826 (West 2010); Mont. Code. Ann. § 40-6-105(3) (2007).
See, also, Ga. Code Ann. § 19-7-54 (Supp. 2009); La. Civ. Code Ann.
art. 187 to 189 (2007); Ohio Rev. Code Ann. §§ 3119.961 and 3119.962
(LexisNexis 2008); Or. Rev. Stat. § 109.072 (2007); Va. Code Ann.
§ 20-49.10. Compare, Ala. Code § 26-17-607 (2009); Ariz. Rev. Stat.
Ann. § 25-812 (Cum. Supp. 2009); La. Code Ann. § 9:399.1 (Cum. Supp.
2012).
59 See, Ex parte State ex rel. A.T., 695 So. 2d 624 (Ala. 1997); Johnston v.
Johnston, 979 So. 2d 337 (Fla. App. 2008); Ashley v. Mattingly, 176 Md.
App. 38, 932 A.2d 757 (2007).
60 See Jacobs, supra note 5 at 257.
61 Id. at 259. See, also, Theresa Glennon, Somebody’s Child: Evaluating the
Erosion of the Marital Presumption of Paternity, 102 W. Va. L. Rev. 547
(2000).
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misconduct.62 Florida and Iowa, on the other hand, allow a
disestablishment action to be brought any time before the child
reaches the age of majority.63 Alabama, Maryland, and Virginia
appear to impose no time limits to their disestablishment of
paternity actions.64
Some state laws impose a best interests analysis on the
court before it may grant a presumed father’s request to
disestablish paternity. Oregon mandates that the court shall
vacate a judgment of paternity upon proof that the man is
not the biological father—unless the court finds that to do so
would be substantially inequitable, giving consideration to
the interests of the parties and the child.65 Iowa law provides
that the court, upon proof that the established father is not the
biological father, may preserve the paternity determination
only if it finds that it is in the best interests of the child to do
so. This analysis considers the child’s age, the length of time
since the establishment of paternity, the previous relationship
between the child and the established father, and the possibil-
ity that the child could benefit from establishing the child’s
actual paternity.66
Maryland has also read its statutes as allowing the court to
set aside a paternity determination of children born during a
marriage only after consideration of the child’s best interests.67
In Ashley v. Mattingly,68 the court rejected an argument that
the broadly worded disestablishment of paternity statutes were
62 Or. Rev. Stat. § 109.072(2)(d). See, also, Mo. Ann. Stat. § 210.854 (West
Cum. Supp. 2012) (2-year statute of limitations).
63 Fla. 	Stat. 	Ann. 	§ 	742.18(2)(g) 	(West 	2010); 	Iowa 	Code 	Ann.
§ 600b.41A(3)(a).
64 See, Ala. Code § 26-17-607; Md. Code Ann., Fam. Law § 5-1038
(LexisNexis 2006); Va. Code Ann. § 20-49.10; Taylor v. Taylor, supra note
38. See, also, Jacobs, supra note 38.
65 Or. Rev. Stat. § 109.072(7).
66 Iowa Code Ann. § 600b.41A(6).
67 See Ashley v. Mattingly, supra note 59. See, also, Kamp v. Department of
Human Services, 410 Md. 645, 980 A.2d 448 (2009). but see Martin v.
Pierce, 370 Ark. 53, 257 S.W.3d 82 (2007).
68 Ashley v. Mattingly, supra note 59.
358 	283 NEbRASkA REPORTS

applicable only to out-of-wedlock children. Maryland law states
that a declaration of paternity in a final order can be set aside
if scientific testing establishes that the named father is not the
biological father.69 A subsection of that statute states: “Except
for a declaration of paternity, the court may modify or set aside
any order or part of an order under this subtitle as the court
considers just and proper in light of the circumstances and in
the best interests of the child.”70 The court in Ashley noted that
these provisions are found in Maryland’s paternity act, which
is largely aimed at addressing putative fathers of children born
outside of marriage. Nevertheless, implicit paternity determina-
tions of presumed fathers in dissolution decrees could be set
aside under the plain language of the act. but the act required
consideration of the child’s best interests before setting aside
a paternity determination for a child born in wedlock. It did
not impose such a best interests analysis for children born out
of wedlock.71
Other state statutes do not set forth a best interests analysis
in the context of disestablishment of paternity. At least one
court has held that unless a statute provides to the contrary,
“the ‘best interests of the child’ standard generally has no place
in a proceeding to reconsider a paternity declaration.”72
(e) § 43-1412.01 Imposes best
Interests Analysis
[12] We do not consider Jeremy’s petition, filed after the
dissolution decree, as having been filed out of time. And we
conclude that, like the disestablishment of paternity statutes
in Virginia and other states, § 43-1412.01 gives the court dis-
cretion to determine whether disestablishment of paternity is
appropriate in light of both the adjudicated father’s interests
and the best interests of the child.
69 Md. Code Ann., Fam. Law § 5-1038.
70 § 5-1038(b).
71 See, Ashley v. Mattingly, supra note 59; Kamp v. Department of Human
Services, supra note 67.
72 Langston v. Riffe, 359 Md. 396, 425, 754 A.2d 389, 404 (2000).
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Section 43-1412.01 provides that the court
may set aside a final judgment, court order, administra-
tive order, obligation to pay child support, or any other
legal determination of paternity if a scientifically reli-
able genetic test performed in accordance with sections
43-1401 to 43-1418 establishes the exclusion of the indi-
vidual named as a father in the legal determination.
(Emphasis supplied.) “Unless such construction would be
inconsistent with the manifest intent of the Legislature . . .
[w]hen the word may appears, permissive or discretionary
action is presumed.”73 Section 43-1412.01 also states that the
“court shall appoint a guardian ad litem to represent the inter-
est of the child.” (Emphasis supplied.)
We read the statute as thus granting discretion to the trial
court in determining whether to grant disestablishment. The
court’s discretion should consider both the adjudicated father’s
and the child’s interests. While the statute fails to precisely
detail what circumstances should be considered in weighing
the interests of the parties, we believe it would be appropri-
ate for the court to consider the child’s age, the length of
time since the establishment of paternity, the previous rela-
tionship between the child and the established father, and the
possibility that the child could benefit from establishing the
child’s actual paternity. because the district court believed it
was prohibited as a matter of law from granting relief under
§ 43-1412.01, it did not consider the respective interests of the
parties in the case. The matter will need to be remanded for
further proceedings.
(f) Public Policy Is Province of Legislature
[13] It is apparent that a child can be harmed when an adjudi-
cated father seeks to set aside a previously final paternity deter-
mination. but the harm is no greater for a child born during a
marriage than for a child born out of wedlock. With changing
societal values regarding illegitimacy and the advent of genetic
testing, the marital presumption has become less important as
73 Neb. Rev. Stat. § 49-802 (Reissue 2010).
360 	283 NEbRASkA REPORTS

a tool for ensuring a child’s support by both parents,74 and the
legal environment has become more concerned with biological
ties to fatherhood.75 Ultimately, the Legislature has determined
that an adjudicated father—of a child born either in or out of
wedlock—may ask that a court set aside a support order if
genetic testing proves he is not the child’s biological father.
The Legislature has determined that the trial court has discre-
tion in determining whether to grant such relief, considering
the interests of both the adjudicated father and the child. It
is properly the function of the Legislature through the enact-
ment of statutes to declare what is the law and public policy
of this state.76
V. CONCLUSION
The district court erred in concluding that Jeremy could not
rely on § 43-1412.01 as a matter of law because he was married
to the child’s mother when the child was conceived. However,
no evidence was presented and considered with regard to the
respective interests of Jeremy and brady. We reverse the judg-
ment and remand the cause for further proceedings in accord-
ance with this opinion.
reversed and remanded for
further proCeedings.
wright, J., participating on briefs.
gerrard, J., not participating in the decision.
74 See Jacobs, supra note 5.
75 See, id.; Singer, supra note 4.
76 Clemens v. Harvey, 247 Neb. 77, 525 N.W.2d 185 (1994).
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