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Appeal from the District Court for Cass County: DAVID K. ARTERBURN, Judge.
John A. Kinney and Jill M. Mason, of Kinney Law, P.C., L.L.O., for appellant.
Adam E. Astley, of Slowiaczek, Albers & Astley, P.C., L.L.O., for appellee.
Julie E. Bear, of Reinsch, Slattery, Bear & Minahan, P.C., L.L.O., for intervenor-appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, MILLER-LERMAN, CASSEL, and STACY, JJ. MCCORMACK, J., not participating.
[292 Neb. 727] Wright, J.
I. NATURE OF CASE
This is an appeal from the dismissal of a paternity action pursuant to Neb. Rev. Stat. § 43-1411 (Reissue 2008). The biological father brought a paternity action on behalf of himself and as the " next friend" of the minor child. He sought a declaration of paternity and custody of the child, who was born 8 years before the action was filed. He claimed that the statute of limitations barring paternity actions after 4 years should be tolled by the doctrines of fraud and equitable estoppel based on misrepresentations of the mother that he was not the father. He asserts that our holding in Doak v. Milbauer, 216 Neb. 331, 343 N.W.2d 751 (1984), permits him to bring the action as the next friend of the child. And he claims that § 43-1411 is unconstitutional under the Due Process and Equal Protection Clauses of the state and federal Constitutions.
For the reasons stated below, we affirm the order of the district court.
[292 Neb. 728] II. SCOPE OF REVIEW
A claim of equitable estoppel rests in equity, and in an appeal of an equity action, an appellate court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court. Olsen v. Olsen, 265 Neb. 299, 657 N.W.2d 1 (2003). Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court's determination. Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015). The constitutionality of a statute is a question of law which we review independently of the lower court's determination. See Big John's Billiards v. State, 288 Neb. 938, 852 N.W.2d 727 (2014).
Appellee, Anne B., and intervenor, Adam B., have been married since May 1999. During the first 5 years of their marriage, Anne and Adam unsuccessfully attempted to conceive a child. Appellant, Bryan M., has been married to his wife for more than 25 years, and they have two children.
In the fall of 2003 until spring 2004, Anne and Bryan engaged in an extramarital affair in which they regularly engaged in sexual intercourse without contraception. During the affair, Anne continued to have regular sexual intercourse with both Bryan and her husband without using contraception. When Anne became pregnant, she broke off her relationship with Bryan. Bryan inquired several times whether he was the father of the child and was told that he was not. After the child, T.B., was born in 2004, Bryan again asked Anne whether he was the biological father. Again, he was told that he was not the father. Since T.B.'s birth in 2004, Adam has raised T.B. with the belief that he is T.B.'s father. Adam has served as T.B.'s father for T.B.'s entire life. Since T.B.'s birth, Bryan's contact with Anne and T.B. has been limited to occasional, unplanned meetings.
In 2012, Anne and Bryan resumed their extramarital affair. When the relationship resumed, Bryan requested a DNA [292 Neb. 729] test to determine whether he is T.B.'s biological father. A DNA test performed at an Omaha, Nebraska, medical center revealed
a 99.9-percent chance that Bryan is T.B.'s biological father.
Bryan filed his initial complaint on September 17, 2013, seeking to establish paternity of T.B. and custody. His second amended complaint, as stated by the district court, asserted the following:
1. [Bryan] is bringing this action in his own capacity, and Nebraska's four-year Statute of Limitations [provided in § 43-1411] is unconstitutional;
2. [Bryan] is bringing this action in his own capacity, and the Statute of Limitations should be tolled [based on fraud/deception]; and
3. [Bryan] is bringing this action both in his individual capacity and " as someone informally acting in the best interest of T.B., but not formally his guardian." The action is also captioned " Bryan . . ., on behalf of himself and as 'next friend' of T.B.[" ]
Bryan argued that the 4-year statute of limitations should be tolled because Anne told him that he was not the biological father.
The district court rejected Bryan's argument and found that the statute of limitations under § 43-1411 should not be tolled. The court found that Bryan had not been " deceived or hoodwinked into inactivity" by Anne, but simply failed to exercise his rights with due diligence. It found that Bryan originally did not want to be a parent to T.B., because he wanted to preserve his own marriage, and that he knew or should have known that it was impossible for Anne to know with certainty that he was not the father. It also granted Anne's motion to strike Bryan's claims brought as " the next friend" of T.B., because it was not alleged or shown that T.B. was without a guardian, since T.B. was currently living with his biological mother.
On Bryan's and Anne's renewed motions for partial summary judgment, the court found that § 43-1411 did not violate the [292 Neb. 730] Due Process Clauses of the U.S. and Nebraska Constitutions. The court found that the statute permitted sufficient time for parents to assert claims and that the government had a sufficient interest in preventing children from being removed from stable homes after a certain period of time. Moreover, it found that § 43-1411 did not violate Bryan's rights under the Equal Protection Clauses of the U.S. and Nebraska Constitutions. It rejected Bryan's arguments that § 43-1411 impermissibly discriminated against men as opposed to women and found that Bryan lacked the standing to bring the argument that the statute discriminated against children born out of wedlock. Bryan timely appealed.
IV. ASSIGNMENTS OF ERROR
Bryan assigns as error the trial court's finding (1) that Bryan could not file this action derivatively as T.B.'s next friend, (2) that Bryan did not meet his burden of proving equitable estoppel/fraud tolling of the statute of limitations found in § 43-1411, (3) that § 43-1411 is constitutional under the Equal Protection Clauses of the U.S. and Nebraska Constitutions, and (4) that ...