Fittje v. Potter

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Fittje v. Potter

Additional Case Names
Vasa v. Potter
Case Number
A-16-0104
A-16-0105
Call Date
October 12, 2016
Case Time
1:30 PM
Case Summary

A-16-0104, Tyler F. (Appellant) v. Sara P. & A-16-0105, Geoffrey V. on behalf of J.F., a minor child, (Appellant and Cross-Appellee) v. Sara P.

[These cases have been consolidated on appeal.]

Lancaster County, District Court Judge Steven D. Burns

Attorney for Appellant (Tyler F.): Andrea Finegan McChesney & Joshua M. Livingston, Senior Certified Law Clerk (McChesney & Farrell Law)

Attorney for Appellant and Cross Appellee (Geoffrey V.): Joel Bacon & Tara L. Gardner (Keating, O'Gara, Nedved & Peter, PC, LLO)

Attorney for Appellee: Sara Potter, Pro Se

Civil Action: Paternity, custody, child support

Action Taken by Trial Court: The district court determined that Tyler F. is the legal father of J.F. and Geoffrey V. is the biological father. The court awarded custody of J.F. to Tyler subject to parenting time by Sara P. and Geoffrey and ordered Sara and Geoffrey to pay child support.

Assignments of Error on Appeal: On appeal, Tyler assigns that the district court erred in: (1) finding that Geoffrey had standing to bring a claim as next friend of J.F. and (2) deviating from the Nebraska Child Support Guidelines by treating Sara and Geoffrey combined as the noncustodial parent.

On cross-appeal, Geoffrey assigns that the district court erred in: (1) concluding that Geoffrey had not raised a claim in his individual capacity and (2) evaluating the material mistake of fact question from Sara's perspective if the court concluded that Tyler's paternity acknowledgement had to be set aside before determining that Geoffrey had paternity.

Extended Case Summary (for Educational Purposes):
A-16-0104, Tyler F. (Appellant) v. Sara P. & A-16-0105, Geoffrey V. on behalf of J.F., a minor child, (Appellant and Cross-Appellee) v. Sara P.

[These cases have been consolidated on appeal.]

Lancaster County, District Court Judge Steven D. Burns

Attorney for Appellant (Tyler F.): Andrea Finegan McChesney & Joshua M. Livingston, Senior Certified Law Clerk (McChesney & Farrell Law)

Attorney for Appellant and Cross Appellee (Geoffrey V.): Joel Bacon & Tara L. Gardner (Keating, O'Gara, Nedved & Peter, PC, LLO)

Attorney for Appellee: Sara Potter, Pro Se

Civil Action: Paternity, custody, child support

Action Taken by Trial Court: The district court determined that Tyler F. is the legal father of J.F. and Geoffrey V. is the biological father. The court awarded custody of J.F. to Tyler subject to parenting time by Sara P. and Geoffrey and ordered Sara and Geoffrey to pay child support.

Assignments of Error on Appeal: On appeal, Tyler assigns that the district court erred in: (1) finding that Geoffrey had standing to bring a claim as next friend of J.F. and (2) deviating from the Nebraska Child Support Guidelines by treating Sara and Geoffrey combined as the noncustodial parent.

On cross-appeal, Geoffrey assigns that the district court erred in: (1) concluding that Geoffrey had not raised a claim in his individual capacity and (2) evaluating the material mistake of fact question from Sara's perspective if the court concluded that Tyler's paternity acknowledgement had to be set aside before determining that Geoffrey had paternity.

Facts: In November 2007, Sara conceived J.F. and was in a relationship with Tyler. During her pregnancy, Sara informed Geoffrey that he could be the father of J.F. but did not tell Tyler. At J.F.'s birth, Tyler signed an acknowledgment of paternity and was listed on J.F.'s birth certificate. Tyler was the father and financial provider for J.F. even after his relationship with Sara ended.

In August 2014, Tyler filed a petition to establish paternity, custody, and visitation. In her answer, Sara alleged that Tyler was not the biological father, an allegation Tyler was hearing for the first time. Subsequent biological testing confirmed that Geoffrey, not Tyler, was the biological father of J.F.

In December 2014, Geoffrey filed a motion to intervene in Tyler's paternity case. The court denied the motion, finding that the four year statute of limitations provided in Neb. Rev. Stat. ' 43-1411(1) (Reissue 2008) prohibited Geoffrey's action and that he had not established that he had standing to intervene. The following day, Geoffrey commenced a separate action, filing the complaint as 'next friend' of J.F. to establish his paternity, custody, and visitation of J.F.

After consolidating Tyler's case and Geoffrey's case and holding a trial, the district court determined that Geoffrey had standing to act in the capacity of next friend of J.F., that Tyler is the father of J.F. by reason of the acknowledgment of paternity, and that Geoffrey is the father of J.F. by reason of biological testing. The court therefore considered the rights and interests of Tyler, Geoffrey, and Sara in making custody, parenting time, and child support determinations.

Tyler first argues that the court erred in finding that Geoffrey had standing to bring a claim as next friend of J.F. when J.F. was in the custody of his biological mother and legal father. Geoffrey argues that the relevant case law left the door open for biological fathers to pursue a next friend claim when the point of the paternity action is not only to establish an emotional link on behalf of the child, but also to create a legally binding financial support obligation for the child.

Tyler also claims that the district court should have calculated child support based upon the child support guidelines, rather than deviating from the guidelines and considering Tyler, Geoffrey, and Sara as J.F.'s parents.

Geoffrey argues that both the pleadings and the history of the case show that he was proceeding in both his individual capacity and as next friend of J.F. when he filed his separate action. Thus, the court should have allowed him to proceed in his individual capacity.

Finally, Geoffrey contends that to the extent he was required to set aside the acknowledgement of paternity before his own paternity could be established, the district court erred in analyzing whether the acknowledgement should be set aside. He argues that the court analyzed whether Sara had made a material mistake of fact when the proper question was whether Geoffrey, not Sara or Tyler, had made a material mistake.

Case Location
Doane University
Panel Text
Inbody, Riedmann, and Bishop, Judges