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State v. Ricky K.

Supreme Court of Nebraska

June 8, 2018

State of Nebraska on behalf of Marcelo K. AND RYCKI K., MINOR CHILDREN, APPELLANT.
v.
Ricky K. and Belinda D., appellees.

         1. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.

         2. ___: ___. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.

         3. Actions: Parties: Final Orders: Appeal and Error. One may bring an appeal pursuant to Neb. Rev. Stat. § 25-1315 (Reissue 2016) only when (1) multiple causes of action or multiple parties are present, (2) the court enters a "final order" within the meaning of Neb. Rev. Stat. § 25-1902 (Reissue 2016) as to one or more but fewer than all of the causes of action or parties, and (3) the trial court expressly directs the entry of such final order and expressly determines that there is no just reason for delay of an immediate appeal.

         4. Jurisdiction: Appeal and Error. An appellate court and the tribunal appealed from do not have jurisdiction over the same case at the same time.

          Appeal from the District Court for Douglas County: Marlon A. Polk, Judge. Appeal dismissed.

          Theodore P. Arndt, Authorized Attorney for the State of Nebraska, for appellant.

          Willow T. Head, of Law Offices of Willow T. Head, PC, L.L.O., for appellee Ricky K.

          [300 Neb. 180] Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Daugherty, District Judge.

          Cassel, J.

         INTRODUCTION

         The State of Nebraska initiated a proceeding to establish support for two children, based upon notarized acknowledgments of paternity. Ultimately, the pleadings framed multiple claims. After the district court entered an order disestablishing paternity of one child and taking no action on the other claims, the State purported to appeal. Because our statute[1]governing multiple parties and multiple claims dictates that the order was not final or appealable, we dismiss the appeal for lack of jurisdiction.

         BACKGROUND

         The State brought an action against Ricky K., the acknowledged father of Marcelo K. and Rycki K., to establish child support for the two minor children. Belinda D., the mother of the minor children, was joined in the initial complaint, which styled her as a "Third Party Defendant."

         Ricky filed an amended answer and counterclaim and cross-claim (styled as a cross-complaint, despite seeking relief against both the State and Belinda) in which he alleged that he was not the biological father of Marcelo, that Belinda fraudulently coerced him into signing the minor child's birth certificate, and that there was a material mistake of fact and fraud based on her representations. For these reasons, he sought a disestablishment of paternity as to Marcelo. As to Rycki, Ricky admitted he was Rycki's biological father and sought joint legal and physical custody of the minor child. The counterclaim and cross-claim set forth two "causes of action" separately raising Ricky's claims regarding Marcelo and Rycki, respectively.

          [300 Neb. 181] The district court did not officially bifurcate the matter, but the issues pertaining to the disestablishment of paternity of Marcelo, including appointment of a guardian ad litem, were referred to the district court referee. After genetic testing was done, but before hearing on the disestablishment issue, the referee appointed a guardian ad litem.

         After an evidentiary hearing on disestablishment, the referee found that the genetic testing excluded Ricky from being Marcelo's biological father. However, because the referee determined that both Ricky and Belinda signed the acknowledgment of paternity knowing that Ricky was not Marcelo's biological father, it concluded that the evidence was insufficient to satisfy the required showing of fraud, material mistake of fact, or duress. Consequently, the referee determined that Ricky had failed to meet his burden of proof and recommended denying disestablishment.

         Ricky filed exceptions to the referee's report and requested that the issue be considered by the district court. After a hearing, the district court sustained the exception to the referee's recommendations and rejected its analysis and conclusion. The court made independent findings and concluded that the statutory requirements to ...


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