Quintela v. Quintela

544 N.W.2d 111, 4 Neb. Ct. App. 396, 1996 Neb. App. LEXIS 65
CourtNebraska Court of Appeals
DecidedFebruary 27, 1996
DocketA-95-086
StatusPublished
Cited by12 cases

This text of 544 N.W.2d 111 (Quintela v. Quintela) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Quintela v. Quintela, 544 N.W.2d 111, 4 Neb. Ct. App. 396, 1996 Neb. App. LEXIS 65 (Neb. Ct. App. 1996).

Opinions

Irwin, Judge.

I. INTRODUCTION

Pedro I. Quíntela appeals from a divorce decree which ordered him to pay child support for a minor child born during the parties’ marriage but who paternity tests establish is not his biological child. We find that Pedro was not provided with a full and fair hearing on the issue of paternity, and we therefore reverse, and remand for further proceedings.

H. FACTUAL BACKGROUND

The bill of exceptions in this case is 11 pages long and reveals the following facts:

Dianna L. Quiniela and Pedro I. Quíntela were married on June 21, 1986, in Jackson County, Mississippi. Both parties were in the Navy at the time. After their marriage, Pedro’s ship was sent to Scotland, and Dianna moved to Virginia Beach, Virginia. Pedro returned to Virginia in 1987 and resumed living with Dianna.

Joshua Quíntela was bom on January 12, 1991. Dianna testified that the parties stopped living together in mid-1991. In December 1992, Dianna and Joshua moved to Nebraska.

On October 13, 1993, Dianna filed a petition for legal separation and alleged that Pedro was Joshua’s father. On January 5, 1994, Dianna amended her filing to a petition for dissolution and again alleged that Pedro was Joshua’s father. Pedro filed an answer and cross-petition on March 11, denied [398]*398that he was Joshua’s father, and requested a blood test to determine paternity. On March 21, Dianna filed a reply and affirmatively alleged that Pedro was Joshua’s father.

According to the court’s docket sheet, the matter was set for trial on October 6, 1994, on the court’s own motion. The bill of exceptions reflects that when the matter was called by the court on October 6, the following colloquy ensued:

THE COURT: Court is considering Quíntela vs. Quíntela at Docket 9369, Page 1396. Petitioner is present with counsel. Respondent present by counsel. Is this resolved?
MS. WAGEMAN [Dianna’s counsel]: Yes, it is. Only thing we are going to do is prove up on it. We still have to send the decree down to the respondent.

Dianna appeared with her counsel, and Pedro’s counsel appeared. Although a guardian ad litem had been appointed to represent Joshua’s interests, the guardian was not present at trial. It is uncontroverted that the parties believed they had resolved the issues prior to trial, and Dianna appeared merely to “prove up” the petition. In fact, regarding issues surrounding the child, Dianna’s counsel questioned her as follows:

Q The respondent has denied that he is the biological father of this child?
A Right.
Q You and the respondent and your child voluntarily underwent paternity testing; correct?
A Right.
Q The results of that test indicated that in fact the respondent is not the biological father.
A Right.
Q So you understand today that the Court is not making any findings regarding issues of child custody between you and the respondent.
A Yes.

Pedro’s counsel, questioned Dianna as follows: “Q You and Pedro have agreed he is not the father and he is forever barred from seeing the child? A That’s correct.” .

The results of the paternity test were received by the court. The test indicated that there was a “0.0” percent chance that [399]*399Pedro was Joshua’s father. According to the test results, Pedro “lack[ed] the genetic markers that must be contributed to [Joshua] by the biological father,” and Pedro was thus “excluded as the biological father of [Joshua].” According to Dianna’s testimony, the parties all agreed that Pedro is not Joshua’s father.

After the petition had been proven by examination of Dianna, the court examined Dianna regarding the relationship between Pedro and Joshua. Dianna testified that she had thought someone other than Pedro was Joshua’s father when she was pregnant. Dianna further testified that she informed Pedro he was not Joshua’s father, although she did not testify as to when she so informed him. Dianna testified that she knew the biological father’s name, although she never maintained a paternity action against him and testified that she did not know where he was at the time of trial.

Dianna testified that she had furnished the hospital Pedro’s name as the father, although she knew Pedro was not the father. She also testified that Pedro had treated Joshua as his child “[u]ntil right after Josh’s first birthday when [the parties] split up.” Pedro had stopped visiting Joshua after Dianna and Joshua moved to Nebraska, although Dianna testified that Pedro had called and sent birthday cards to Joshua. Dianna testified that Pedro had sent support for her and Joshua until February 1994.

During the trial, the court expressed concern over Joshua’s best interests. The court suggested that Pedro should be obligated to support Joshua despite the paternity test results. On December 21, 1994, the court entered a decree of dissolution. The court found that Pedro “has acknowledged paternity of [Joshua] and therefore . . . both parties are estopped from denying paternity of [Joshua] and [Joshua] is a child bom from the marriage” of Pedro and Dianna. The court ordered Pedro to pay $335 in child support per month. On October 19, Pedro had filed a “Motion to Hear Additional Evidence” with a supporting affidavit of counsel which stated that it was counsel’s understanding that no trial had been necessary because matters had been resolved between,the parties. This motion was denied. A motion for new trial was also filed. This was also denied by the court. This appeal followed.

[400]*400m. ASSIGNMENTS OF ERROR

In this appeal, Pedro assigns three errors, which we have consolidated for discussion to one: The district court erred in determining paternity and ordering Pedro to pay child support for a minor child who is not his biological offspring.

IV. STANDARD OF REVIEW

In actions for dissolution of marriage, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial court, whose judgment will be upheld in the absence of an abuse of discretion. Jirkovsky v. Jirkovsky, 247 Neb. 141, 525 N.W.2d 615 (1995).

V. ANALYSIS

This case presents us with the question of whether a husband has a legal duty to support a child born during the course of the marriage when paternity tests conclusively demonstrate that he is not the child’s biological father.

1. Choice of Law

We note at the outset that there was a potential conflict-of-laws problem in this case. Joshua was born and lived together with Pedro and Dianna for a period of time in Virginia. Some of the actions upon which the trial court appears to have based Pedro’s support obligation occurred in Virginia. At the time of trial, Pedro was a resident of Texas, and Dianna and Joshua were residents of Nebraska.

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Quintela v. Quintela
544 N.W.2d 111 (Nebraska Court of Appeals, 1996)

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Bluebook (online)
544 N.W.2d 111, 4 Neb. Ct. App. 396, 1996 Neb. App. LEXIS 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quintela-v-quintela-nebctapp-1996.