Benjamin M. v. Jeri S. , 307 Neb. 733 ( 2020 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
BENJAMIN M. v. JERI S.
Cite as 307 Neb. 733Benjamin M., appellant, v.
Jeri S., appellee.
___ N.W.2d ___
Filed November 6, 2020. No. S-19-1144.
1. Motions to Dismiss: Rules of the Supreme Court: Pleadings: Appeal
and Error. A district court’s grant of a motion to dismiss for failure to
state a claim under Neb. Ct. R. of Pldg. § 6-1112(b)(6) is reviewed de
novo, accepting all the allegations in the complaint as true and drawing
all reasonable inferences in favor of the nonmoving party.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law. On a question of law, an appellate court is obligated to
reach a conclusion independent of the determination reached by the
court below.
3. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the
power of a tribunal to hear and determine a case in the general class or
category to which the proceedings in question belong and to deal with
the general subject matter involved.
4. Courts: Jurisdiction: Paternity. District courts have subject matter
jurisdiction of actions to determine paternity of a child.
5. Limitations of Actions: Pleadings. A challenge that a pleading is
barred by the statute of limitations is a challenge that the pleading fails
to allege sufficient facts to constitute a claim upon which relief can
be granted.
6. Limitations of Actions: Pleadings: Waiver. A statute of limitations
does not operate by its own force as a bar, but, rather, operates as a
defense to be pleaded by the party relying upon it and is waived if
not pleaded.
7. Limitations of Actions: Jurisdiction. The failure to comply with a
statute of limitations is not an issue of subject matter jurisdiction.
8. Paternity: Acknowledgments. The proper legal effect of a signed, nota-
rized acknowledgment of paternity is a finding that the individual who
signed as the father is in fact the legal father.
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BENJAMIN M. v. JERI S.
Cite as 307 Neb. 7339. ____: ____. The establishment of paternity by acknowledgment is the
equivalent to establishment of paternity by judicial proceeding.
10. Constitutional Law: Parental Rights: Minors. Parents have a consti-
tutional right to retain custody and control of their child.
11. Constitutional Law: Jurisdiction: Equity: Child Custody. Article
V, § 9, of the Nebraska Constitution confers equity jurisdiction upon
the district courts, and issues of child custody fall within that general
equity jurisdiction.
12. Paternity: Acknowledgments: Child Custody: Child Support. Neb.
Rev. Stat. § 43-1402 (Reissue 2016) authorizes the filing of an action for
child custody and child support when an acknowledgment of paternity
has been executed by the parties.
13. Limitations of Actions: Paternity: Acknowledgments: Child
Custody: Child Support. The 4-year statute of limitations on paternity
actions does not bar an action for child custody and child support for a
father who executed an acknowledgment of paternity.
14. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Lancaster County:
Susan I. Strong, Judge. Reversed and remanded for further
proceedings.
Megan E. McDowell and Jerrad R. Ahrens, of Cordell &
Cordell, P.C., for appellant.
Robert Wm. Chapin, Jr., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
NATURE OF CASE
Benjamin M. filed an action to establish paternity, custody,
support, and parenting time. Benjamin later filed two notarized
acknowledgments of paternity contemporaneously with an
amended complaint to establish custody, support, and parent-
ing time. The district court dismissed the amended complaint
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BENJAMIN M. v. JERI S.
Cite as 307 Neb. 733based on statute of limitations grounds. Benjamin appeals and
argues that the district court erred in failing to give proper legal
effect to the notarized acknowledgments of paternity. We agree
and reverse the district court’s order and remand the cause for
further proceedings.
BACKGROUND
Benjamin and Jeri S. are the unmarried parents of two minor
children: F.M., born in 2010, and L.M., born in 2012. Two days
after the birth of F.M., Benjamin and Jeri executed a notarized
acknowledgment of paternity for F.M. One day after the birth
of L.M., Benjamin and Jeri executed a notarized acknowledg-
ment of paternity for L.M.
In April 2019, Benjamin filed a complaint in the district court
for Lancaster County, Nebraska, to establish paternity, child
custody, child support, and parenting time. Jeri filed a motion
to dismiss pursuant to Neb. Rev. Stat. § 43-1411 (Reissue
2016), arguing that the court lacked subject matter jurisdic-
tion to adjudicate the case because the complaint was filed
beyond the 4-year statute of limitations for a paternity action.
In response, Benjamin filed an amended complaint to establish
child custody, child support, and parenting time in which he
pled that he and Jeri had executed notarized acknowledgments
of paternity for both children. The amended complaint further
alleged that as a result of the acknowledgments of paternity,
Benjamin was the legal father of both children.
The court held hearings on the motion to dismiss on
August 23 and September 10, 2019. The hearings were held
“in chambers [and] not on the record.” However, at the
September 10 hearing, the court went on the record to “see if
[counsel for Benjamin] would like to offer the acknowledg-
ments of paternity as exhibits that the Court could consider
on the motion to dismiss,” as well as to “address [counsel
for Benjamin’s] comment that an Amended Complaint has
been filed after the motion to dismiss.” Certified copies of
the notarized acknowledgments of paternity for both F.M. and
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BENJAMIN M. v. JERI S.
Cite as 307 Neb. 733L.M. were offered and received into evidence, without objec-
tion from Jeri. In response, the court proposed converting
the motion to dismiss into a motion for summary judgment.
Neither party objected.
On September 11, 2019, the district court entered an order
of dismissal. In its order, the district court determined that
Benjamin set forth no allegations that would toll the statute
of limitations and pointed out that Benjamin knew he was the
biological father at the time of the births, as evidenced by the
notarized acknowledgments of paternity, but he waited more
than 4 years to bring this action. The district court discussed
Neb. Rev. Stat. § 43-1409 (Reissue 2016), which recognizes
that a signed, notarized acknowledgment of paternity can be
rescinded within the earlier of 60 days or the date of a judi-
cial proceeding relating to the child, including a proceeding
to establish a support order, in which the signatory is a party.
The district court also discussed Cesar C. v. Alicia L., 1 in
which this court found that a lower court committed plain
error when it failed to give proper legal effect to a notarized
acknowledgment of paternity signed at birth. However, the
district court noted that Cesar C. did not involve the statute
of limitations. The district court concluded that Benjamin
failed to timely exercise his parental rights with due diligence
and that thus, his action was barred by the 4-year statute of
limitations set forth in § 43-1411. Because the court consid-
ered evidence (in the form of the acknowledgments of pater-
nity), it applied a motion for summary judgment standard to
Jeri’s motion to dismiss. The court stated that when viewing
the evidence and all reasonable inferences in the light most
favorable to Benjamin, it could not find any genuine issues
of material fact which would preclude summary judgment.
The court determined that Benjamin was asserting his parental
rights more than 4 years after the birth of his children and
1
Cesar C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (2011).
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BENJAMIN M. v. JERI S.
Cite as 307 Neb. 733ultimately found that an untimely action to establish paternity
under § 43-1411 was a defect in subject matter jurisdiction
and dismissed the case.
On September 20, 2019, Benjamin filed motions to recon-
sider, to vacate the order of dismissal, for new trial, and to
reopen evidence. After a hearing, the district court entered an
order denying all four motions. Benjamin timely appeals.
ASSIGNMENTS OF ERROR
Benjamin assigns, restated and consolidated, that the dis-
trict court erred (1) by not giving proper legal effect to the
acknowledgments of paternity, (2) in finding the notarized
acknowledgments of paternity recognized in Neb. Rev. Stat.
§ 43-1402 (Reissue 2016) are subject to the 4-year statute of
limitations for paternity actions set forth in § 43-1411, and
(3) by improperly converting Jeri’s motion to dismiss into a
motion for summary judgment without proper notice or an
opportunity to respond.
STANDARD OF REVIEW
[1] A district court’s grant of a motion to dismiss for fail-
ure to state a claim under Neb. Ct. R. Pldg. § 6-1112(b)(6) is
reviewed de novo, accepting all the allegations in the com-
plaint as true and drawing all reasonable inferences in favor of
the nonmoving party. 2
[2] Statutory interpretation presents a question of law. 3 On
a question of law, an appellate court is obligated to reach a
conclusion independent of the determination reached by the
court below. 4
2
Anderson v. Wells Fargo Fin. Accept., 269 Neb. 595, 694 N.W.2d 625(2005).
3
See, State ex rel. Wagner v. Gilbane Bldg. Co., 280 Neb. 223, 786 N.W.2d
330 (2010); State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2002).
4
Ruzicka v. Ruzicka, 262 Neb. 824, 635 N.W.2d 528 (2001).
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BENJAMIN M. v. JERI S.
Cite as 307 Neb. 733ANALYSIS
Jurisdiction
[3,4] Before reaching the legal issues presented for review,
an appellate court must determine whether it has jurisdiction. 5
In its order of dismissal, the district dismissed the case for
lack of subject matter jurisdiction for Benjamin’s failure to file
his paternity action within 4 years of the birth of the children.
Subject matter jurisdiction is the power of a tribunal to hear
and determine a case in the general class or category to which
the proceedings in question belong and to deal with the gen-
eral subject matter involved. 6 We have consistently held that
the district court has subject matter jurisdiction of an action to
determine paternity of a child. 7
[5-7] A challenge that a pleading is barred by the statute
of limitations is a challenge that the pleading fails to allege
sufficient facts to constitute a claim upon which relief can be
granted. 8 We have previously stated that a statute of limita-
tions specifies only that an action must be commenced within
a specified time period. 9 Further, a statute of limitations does
not operate by its own force as a bar, but, rather, operates as
a defense to be pleaded by the party relying upon it and is
waived if not pleaded. 10 Parties cannot confer subject matter
jurisdiction upon a judicial tribunal by either acquiescence
or consent, nor may subject matter jurisdiction be created
5
McEwen v. Nebraska State College Sys., 303 Neb. 552, 931 N.W.2d 120(2019).
6
J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893(2017).
7
Sherman T. v. Karyn N., 286 Neb. 468, 837 N.W.2d 746 (2013). See Neb.
Rev. Stat. § 43-1411.01 (Cum. Supp. 2018).
8
Anthony K. v. Nebraska Dept. of Health & Human Servs., 289 Neb. 540,
855 N.W.2d 788 (2014).
9
In re Estate of Hockemeier, 280 Neb. 420, 786 N.W.2d 680 (2010).
10
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BENJAMIN M. v. JERI S.
Cite as 307 Neb. 733by waiver, estoppel, consent, or conduct of the parties. 11 As
such, the failure to comply with a statute of limitations is not
an issue of subject matter jurisdiction. Instead, we find that a
more appropriate ground for dismissal in this case would have
been dismissal for failure to state a claim upon which relief
can be granted. 12 However, neither party has raised this issue
on appeal, and as such, we proceed with our analysis as if the
district court had dismissed this case on the ground of failure to
state a claim upon which relief could be granted.
Acknowledgments of Paternity
Benjamin argues that the district court erred by not giv-
ing the acknowledgments of paternity proper legal effect. He
further contends that a notarized acknowledgment of paternity
which has not been rescinded is not merely a presumption of
paternity, but a legal finding of paternity. Jeri counters that
any paternity action brought more than 4 years after the birth
of the child is barred by § 43-1411. She contends that an
acknowledgment of paternity has no effect on the 4-year statute
of limitations.
[8] The procedure for obtaining a judicial determination of
paternity is set forth in Neb. Rev. Stat. §§ 43-1401 to 43-1418
(Reissue 2016 & Cum. Supp. 2018). Section 43-1409 provides
as follows:
The signing of a notarized acknowledgment, whether
under section 43-1408.01 or otherwise, by the alleged
father shall create a rebuttable presumption of ­paternity as
against the alleged father. The signed, notarized acknowl-
edgment is subject to the right of any signatory to rescind
the acknowledgment within the earlier of (1) sixty days
or (2) the date of an administrative or judicial proceed-
ing relating to the child, including a proceeding to estab-
lish a support order in which the signatory is a party.
11
J.S., supra note 6.
12
See Anthony K., supra note 8.
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BENJAMIN M. v. JERI S.
Cite as 307 Neb. 733After the rescission period a signed, notarized acknowl-
edgment is considered a legal finding which may be
challenged only on the basis of fraud, duress, or material
mistake of fact with the burden of proof upon the chal-
lenger, and the legal responsibilities, including the child
support obligation, of any signatory arising from the
acknowledgment shall not be suspended during the chal-
lenge, except for good cause shown. Such a signed and
notarized acknowledgment or a certified copy or certified
reproduction thereof shall be admissible in evidence in
any proceeding to establish support.
We have held that an unrescinded and unchallenged acknowl-
edgment of paternity operates as a legal finding of paternity
and that the proper legal effect of a signed, notarized acknowl-
edgment is a finding that the individual who signed as the
father is in fact the legal father. 13
[9] In Cesar C., we considered the legal effect of an
acknowledgment of paternity in a custody matter. 14 In that
case, Cesar C. and Alicia L. were unmarried, but shared a
child, Jaime C., together. A notarized acknowledgment of
paternity was executed at Jaime’s birth, and Cesar was listed
as Jaime’s father on the birth certificate. Three years later, at
a subsequent court proceeding to establish custody and child
support, a genetic test ruled out Cesar as a possible biologi-
cal father of Jaime. Although the district court received the
notarized acknowledgment of paternity into evidence without
objection, it awarded custody of Jaime to Alicia and deter-
mined Alicia had superior rights to custody as the biological
parent of Jaime. On appeal, this court reversed the decision
of the district court and concluded that the district court com-
mitted plain error when it failed to give proper legal effect to
13
See, Tyler F. v. Sara P., 306 Neb. 397, 945 N.W.2d 502 (2020); In re
Adoption of Jaelyn B., 293 Neb. 917, 883 N.W.2d 22 (2016); Cesar C.,
supra note 1.
14
Cesar C., supra note 1.
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BENJAMIN M. v. JERI S.
Cite as 307 Neb. 733the acknowledgment of paternity, which established Cesar as
Jaime’s legal father. We determined that had the court given
proper legal effect to the acknowledgment, the court would
have viewed both Cesar and Alicia as legal parents to Jaime.
We found that the establishment of paternity by acknowledg-
ment is the equivalent to the establishment of paternity by
judicial proceeding. As a result, we held that based upon the
acknowledgment of paternity, the court should have treated the
complaint to establish paternity as a complaint to determine
custody and support.
In In re Adoption of Jaelyn B., 15 we addressed the legal
effect of an acknowledgment of paternity in a proceeding for
adoption. We held that a father whose paternity is established
by a final, voluntary acknowledgment has the same right to
seek custody as the child’s biological mother, even if subse-
quent genetic testing shows he is not the biological father.
Recently, in Tyler F. v. Sara P., 16 we again had the occasion
to consider the effect of an acknowledgment of paternity in
a custody matter. In Tyler F., the district court ruled that an
acknowledgment of paternity established Tyler as the legal
father and a subsequent genetic test established another man as
the biological father. In doing so, the court granted both men
paternal rights. On appeal, we held that the original acknowl-
edgment of paternity determined that Tyler was the only father
of the minor child and that the subsequent genetic test did not
establish paternal rights for the other man without setting aside
the acknowledgment of paternity.
Additionally, § 43-1402 states that the father of a child
whose paternity is established either by judicial proceedings
or by acknowledgment shall be liable for the child’s support
to the same extent and in the same manner as the father of a
child born in lawful wedlock is liable for the child’s support.
15
In re Adoption of Jaelyn B., supra note 13.
16
Tyler F., supra note 13.
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BENJAMIN M. v. JERI S.
Cite as 307 Neb. 733We have explained that this language contained in § 43-1402
contemplates that an establishment of paternity by acknowl-
edgment is the equivalent to an establishment of paternity by
judicial proceeding. 17
Furthermore, § 43-1412.01 authorizes the setting aside of a
final judgment, a court order, an administrative order, an obli-
gation to pay child support, or any other legal determination
of paternity if a scientifically reliable genetic test performed
establishes the exclusion of the individual named as a father
in the legal determination. However, the statute precludes the
granting of such relief when, among other things, the indi-
vidual named as the father completed a notarized acknowledg-
ment of paternity. 18 This provision in § 43-1412.01 provides
further support for the conclusion that an acknowledgment
legally establishes paternity and grants the individual named
as father the legal status of a parent to the child regardless of
genetic factors. 19
In the instant matter, it is undisputed that the acknowledg-
ments of paternity have not been timely rescinded. It is also
undisputed that there have been no challenges made to the
signed and notarized acknowledgments of paternity based on
fraud, duress, or material mistake of fact. 20 Further, neither
party disputes that the acknowledgments of paternity oper-
ate as a finding that Benjamin is the legal father of F.M. and
L.M. In fact, at the hearing on the motion to dismiss, counsel
for Jeri stated, “I think what’s interesting about this particular
case is that the acknowledgment of paternity establishes that
[Benjamin] is, in fact, the father. We’re not actually even con-
testing that.”
Based upon the clear language of §§ 43-1402 and 43-1409,
our cases interpreting these statutes, and the record before
17
Id.; Cesar C., supra note 1.
18
§ 43-1412.01.
19
Cesar C., supra note 1.
20
See § 43-1409.
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BENJAMIN M. v. JERI S.
Cite as 307 Neb. 733us, we find that Benjamin’s acknowledgments of paternity
established him as the legal father of the minor children.
Statute of Limitations
In the present case, the district court did not have the benefit
of our decision in Tyler F. 21 However, the court did consider
our decision in Cesar C. and determined that its holding was
inapplicable to this matter because Jeri’s defense was based
on the statute of limitations, rather than on paternity. 22 The
4-year statute of limitations for paternity actions is found in
§ 43-1411, which states, in relevant part:
A civil proceeding to establish the paternity of a child
may be instituted, in the court of the district where
the child is domiciled or found or, for cases under the
Uniform Interstate Family Support Act, where the alleged
father is domiciled, by (1) the mother or the alleged father
of such child, either during pregnancy or within four
years after the child’s birth . . . .
In its order, the district court determined that if Benjamin
had filed his action within 4 years from the date the chil-
dren were born, “[it] would be required to treat the case as
one for custody and support as between two legal parents
(unless [Jeri] could successfully challenge the acknowledg-
ments of paternity).”
It is undisputed that Benjamin filed his complaint to estab-
lish paternity, custody, and support more than 4 years after the
birth of the minor children. However, by the time Benjamin
initiated the current proceedings, Benjamin’s paternity of F.M.
and L.M. had already been established by the execution of
unrescinded and unchallenged acknowledgments of paternity.
As such paternity was no longer an issue, the only remaining
issues to decide were issues of custody and support. As we
have previously stated, when an action to establish paternity,
21
See Tyler F., supra note 13.
22
See Cesar C., supra note 1.
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BENJAMIN M. v. JERI S.
Cite as 307 Neb. 733custody, and support has been filed after the execution of an
acknowledgment of paternity, the court should treat the action
as an action solely to determine custody and support. 23
[10] Jeri contends that despite Benjamin’s status as the legal
father, there is no statutory authority for Benjamin to bring an
action in district court to establish custody and support. We dis-
agree. First, it is beyond dispute that under the U.S. Supreme
Court’s longstanding precedent, parents have a constitutional
right to retain custody and control of their child. 24 Second, the
Nebraska Legislature has recognized the critical importance of
the parent-child relationship in the welfare and development of
the child and that the relationship between the child and each
parent should be equally considered unless it is contrary to the
best interests of the child. 25
The district courts of Nebraska are courts of general juris-
diction and thus have inherent power to do all things neces-
sary for the administration of justice within the scope of their
jurisdiction. 26 Any power conferred by the constitution cannot
be legislatively limited or controlled. 27 The Legislature may,
however, grant to the district courts such additional jurisdiction
as it may deem proper. 28
[11] We have said that article V, § 9, of the Nebraska
Constitution confers equity jurisdiction upon the district
courts, and issues of child custody fall within that general
23
See, Tyler F., supra note 13; Cesar C., supra note 1.
24
Amanda C. v. Case, 275 Neb. 757, 749 N.W.2d 429 (2008). See, Troxel v.
Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) (plurality
opinion) (citing Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88
L. Ed. 645 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct.
571, 69 L. Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct.
625, 67 L. Ed. 1042 (1923)).
25
Neb. Rev. Stat. § 43-2921 (Reissue 2016).
26
Charleen J. v. Blake O., 289 Neb. 454, 855 N.W.2d 587 (2014).
27
Id.28
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BENJAMIN M. v. JERI S.
Cite as 307 Neb. 733equity jurisdiction. 29 Indeed, since a century ago, Nebraska
common law has recognized an action in equity for custody
apart from an action for dissolution of marriage or paternity. 30
Even when custody is determined within a dissolution or pater-
nity action, it is considered “‘incidental’” to those causes of
action. 31 Questions of custody within such actions still derive
from the court’s general equity jurisdiction. 32 The paternity
statutes therefore cannot circumscribe the district courts’ inher-
ent powers in equity to determine child custody. 33
Statutorily, § 43-1402 states that the liability of each parent
may be determined, enforced, and discharged in accordance
with the methods hereinafter provided. In Cesar C., we held
that when reading §§ 43-1402 and 43-1409 together, the provi-
sion in § 43-1409 that an acknowledgment is a “legal finding”
means that a properly executed acknowledgment legally estab-
lishes paternity in the person named in the acknowledgment as
the father. 34 A father whose paternity is established by a final,
voluntary acknowledgment has the same right to seek custody
as the child’s biological mother. 35 As such, Benjamin’s parental
rights and responsibilities for the children could be determined
and enforced through the filing of an action to establish cus-
tody and support. Any inability of Benjamin to enforce his
parental rights and obligations would run contrary to his con-
stitutional rights as a parent of the children. 36
If the 4-year statute of limitations were to bar an action
for custody and support for a father who executed an
29
Id.
30
Id.
31
Id. at 460, 855 N.W.2d at 593.
32
Id.
33
Id.
34
See Cesar C., supra note 1.
35
Tyler F., supra note 13.
36
See Amanda C., supra note 24.
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BENJAMIN M. v. JERI S.
Cite as 307 Neb. 733acknowledgment of paternity, a man could be a legal father
with the obligation to support his children, but have no parental
rights of custody and parenting time. This would be an unten-
able result. Therefore, we conclude that Benjamin’s action can-
not be barred by the 4-year statute of limitations.
[12,13] We find that when an acknowledgment of paternity
has been executed by the parties, the district court has the
inherent authority to consider the issue of child custody, and
that § 43-1402 authorizes the filing of an action for child cus-
tody and child support. We further find that the 4-year statute
of limitations on paternity actions does not bar an action for
child custody and child support for a father who executed an
acknowledgment of paternity. As such, the district court erred
in its application of § 43-1411.
Remaining Assignment of Error
[14] Benjamin’s remaining assignment of error is that the
district court erred in improperly converting Jeri’s motion to
dismiss into a motion for summary judgment without proper
notice or an opportunity to respond. However, because we
have already determined the district court erred when it failed
to give proper legal effect to the notarized acknowledgments
of paternity, we need not address this assignment of error.
An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy
before it. 37
CONCLUSION
The district court erred in failing to give proper legal effect
to the signed, notarized acknowledgments of paternity executed
by Benjamin and Jeri days after the births of F.M. and L.M.
Additionally, where there is a properly executed and unre-
scinded and unchallenged acknowledgment of paternity, an
37
Fales v. County of Stanton, 297 Neb. 41, 898 N.W.2d 352 (2017).
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BENJAMIN M. v. JERI S.
Cite as 307 Neb. 733action for establishment of paternity should be treated solely
as an action to determine the issues of custody and support.
As such, the statute of limitations governing the time to
bring a paternity proceeding is inapplicable in cases where
there is a properly executed and unrescinded and unchallenged
acknowledgment of paternity. Accordingly, we reverse the dis-
trict court’s order of dismissal and remand the cause for further
proceedings consistent with this opinion.
Reversed and remanded for
further proceedings.