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State v. Julio G.

Supreme Court of Nebraska

May 24, 2019

State of Nebraska, on behalf of State of Florida, on behalf of Mia G., A MINOR CHILD, APPELLANT,
v.
Julio G., appellee.

         1. Attorney Fees. Whether attorney fees are authorized by statute or by the court's recognition of a uniform course of procedure presents a question of law.

         2. Judgments: Appeal and Error. An appellate court independently reviews questions of law decided by a lower court.

         3. Constitutional Law: Due Process: Right to Counsel: Paternity. Due process requires that an indigent defendant in a paternity proceeding be furnished appointed counsel at public expense.

         4. Paternity: Presumptions. A notarized acknowledgment of paternity creates a rebuttable presumption of paternity, but the presumption can be challenged on the basis of fraud, duress, or material mistake of fact.

          Appeal from the District Court for Lancaster County: Jodi L. Nelson, Judge.

          Patrick F. Condon, Lancaster County Attorney, and Anna Marx for appellant.

          Elise M.W. White, of White Law Office, PC, L.L.O., for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

         [303 Neb. 208]Miller-Lerman, J.

         NATURE OF CASE

         In this appeal, we are asked to decide whether a court may appoint counsel at public expense for an indigent individual who has signed a notarized acknowledgment of paternity pursuant to Neb. Rev. Stat. § 43-1408.01 (Reissue 2016) but who, in response to a suit by the State for child support, challenges the acknowledgment of paternity under Neb. Rev. Stat. § 43-1409 (Reissue 2016) on the basis of fraud, duress, or material mistake of fact. Because we conclude that such appointment is required by due process, we reject the State's claim to the contrary and, accordingly, affirm.

         STATEMENT OF FACTS

         Mia G., a minor child, was born in 2016, and on March 25, 2016, Julio G. and Mia's mother signed a notarized acknowledgment of paternity, attesting that Julio was the father of Mia. Julio is also named as the father on the minor child's birth certificate.

         On May 1, 2017, the State, through the county attorney for Lancaster County, filed a child support action in the district court for Lancaster County against Julio on behalf of Mia and attached the signed acknowledgment of paternity to its complaint. On July 20, at a hearing before the district court referee, speaking through an interpreter, Julio admitted that he signed the acknowledgment of paternity in the hospital but challenged the acknowledgment and requested an attorney. Julio indicated that he does not read or speak English, that he did not know what he was signing, and that he was led to believe the acknowledgment related to medical care. Julio stated that "the doctors in Cuba had all told me that I could not have children." Julio stated that he would not have signed an acknowledgment of paternity without a DNA test and that prior to mistakenly signing the acknowledgment, he and Mia's mother had agreed they would complete genetic testing. Julio stated that "if I'm going to be ordered by the State to pay [303 Neb. 209] child support for a child for 18 years, I just want to be sure that they're mine." The referee found ...


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