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08/02/2019 09:07 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          303 Nebraska R eports
                                        STATE ON BEHALF OF MIA G. v. JULIO G.
                                                  Cite as 303 Neb. 207




                                   State     of Nebraska, on behalf of State
                                        of   Florida, on behalf of Mia G.,
                                              a minor child, appellant,
                                                v. Julio G., appellee.
                                                      ___ N.W.2d ___

                                             Filed May 24, 2019.     No. S-18-642.

                 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. Affirmed.

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

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

                 Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
               Papik, and Freudenberg, JJ.
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          Nebraska Supreme Court A dvance Sheets
                  303 Nebraska R eports
             STATE ON BEHALF OF MIA G. v. JULIO G.
                       Cite as 303 Neb. 207

  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 indi-
vidual who has signed a notarized acknowledgment of pater-
nity 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 acknowl-
edgment 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
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
               STATE ON BEHALF OF MIA G. v. JULIO G.
                         Cite as 303 Neb. 207

child support for a child for 18 years, I just want to be sure
that they’re mine.” The referee found that Julio was indigent
and, over objections by the State, appointed counsel for Julio.
On July 25, the district court entered a written order that
appointed counsel for Julio to be paid by Lancaster County.
In the order, the court made clear that the action was a pater-
nity case.
   Counsel for Julio proceeded to file pleadings consistent
with Julio’s claims and obtained an order for genetic testing.
The parties agree that following DNA testing, Julio stipulated
to paternity, and the referee determined that Julio should pay
child support. The district court found that Julio is the biologi-
cal father of Mia and entered an order for child support. Julio’s
appointed counsel moved for attorney fees and expenses. The
district court granted attorney fees and expenses for fees
incurred through the point at which appointed counsel sent a
closing letter to Julio, consistent with its earlier order appoint-
ing counsel.
   The State appeals.

                ASSIGNMENT OF ERROR
  The State claims, summarized and restated, that the district
court erred when it appointed counsel to represent Julio at
public expense.

                  STANDARD OF REVIEW
   [1,2] Whether attorney fees are authorized by statute or
by the court’s recognition of a uniform course of procedure
presents a question of law. D.I. v. Gibson, 295 Neb. 903, 890
N.W.2d 506 (2017). We independently review questions of law
decided by a lower court. Id.

                           ANALYSIS
   The State contends that because paternity was presumed by
the parties’ acknowledgment of paternity, it was not at issue
in its child support case, and that the district court erred when
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
              STATE ON BEHALF OF MIA G. v. JULIO G.
                        Cite as 303 Neb. 207

it appointed counsel for Julio to be paid by Lancaster County.
We reject the State’s assignment of error.
   [3] It is established in Nebraska that due process requires
that an indigent defendant in a paternity proceeding be fur-
nished appointed counsel at public expense. Carroll v. Moore,
228 Neb. 561, 423 N.W.2d 757 (1988). Although commenced
as a child support case, paternity immediately became the cen-
tral issue in this case when Julio challenged the acknowledg-
ment of paternity, claiming a material mistake of fact under
§ 43-1409, and sought DNA testing pursuant to Neb. Rev. Stat.
§ 43-512.04 (Reissue 2016). It was established that Julio was
indigent, and we conclude the district court did not err when it
determined that paternity was at issue in the case and that Julio
was entitled to court-appointed counsel.

Relevant Statutes.
   We begin by setting forth the relevant and applicable stat-
utes which frame the State’s child support action and Julio’s
subsequent challenge to the notarized acknowledgment which
placed paternity at issue in the case.
   Section 43-1409 provides:
        The signing of a notarized acknowledgment, whether
     under section 43-1408.01 or otherwise, by the alleged
     father shall create a rebuttable presumption of pater-
     nity as against the alleged father. The signed, notarized
     acknowledgment 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
     proceeding relating to the child, including a proceeding
     to establish a support order in which the signatory is
     a party. After the rescission period a signed, notarized
     acknowledgment is considered a legal finding which may
     be challenged only on the basis of fraud, duress, or mate-
     rial mistake of fact with the burden of proof upon the
     challenger, and the legal responsibilities, including the
     child support obligation, of any signatory arising from
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
              STATE ON BEHALF OF MIA G. v. JULIO G.
                        Cite as 303 Neb. 207

     the acknowledgment shall not be suspended during the
     challenge, except for good cause shown. Such a signed
     and notarized acknowledgment or a certified copy or
     certified reproduction thereof shall be admissible in evi-
     dence in any proceeding to establish support.
(Emphasis supplied.) Section 43-512.04 discusses the proce-
dure for initiating an action for child support or medical sup-
port on behalf of a child whose paternity is presumed by a
notarized acknowledgment as described above in § 43-1409.
Section 43-512.04(4) provides:
     In such proceeding, if the defendant is the presumed
     father as described in subdivision (1)(b) of this section,
     the court shall make a finding whether or not the pre-
     sumption of paternity has been rebutted. The presumption
     of paternity created by acknowledgment as described in
     section 43-1409 may be rebutted as part of an equitable
     proceeding to establish support by genetic testing results
     which exclude the alleged father as being the biological
     father of the child. A court in such a proceeding may
     order genetic testing as provided in sections 43-1414
     to 43-1418.

District Court Could Properly
Appoint Julio an Attorney
at Public Expense.
   At the initial court hearing, when the district court heard
Julio’s challenge to his acknowledgment of paternity, the court
correctly determined and stated in its order that the child sup-
port case had become an action in which paternity was chal-
lenged, and hence a paternity action.
   [4] Based on the language of § 43-1409, we have explained
that a notarized acknowledgment creates a rebuttable presump-
tion of paternity but that the presumption can be challenged
on the basis of fraud, duress, or material mistake of fact. In
re Interest of Kodi L., 287 Neb. 35, 840 N.W.2d 538 (2013);
Cesar C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (2011).
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
              STATE ON BEHALF OF MIA G. v. JULIO G.
                        Cite as 303 Neb. 207

   In this case, Julio followed the path set forth in § 43-1409
for challenging an acknowledgment of paternity. At the initial
referee hearing, Julio told the referee that he had reasons to
believe that he was not the biological father of the child. He
explained that he did not know what he was signing when
he signed the acknowledgment of paternity, because he did
not read or speak English, the acknowledgment form was in
English, and he believed it was a form pertaining to a medical
matter relating to the birth of the child. Although the better
practice is to file a challenge in writing using the language of
the statute, Julio’s challenge was sufficient under § 43-1409 to
allege a material mistake of fact with regard to the acknowl-
edgment form and was recognized as such by the referee.
Julio acted promptly and unequivocally to put paternity at
issue at the initial referee hearing, and the district court cor-
rectly determined that the case related to paternity in its order
for appointment of counsel. Julio’s subsequent motions to
dismiss the complaint and for genetic testing and the affirm­
ative defenses asserted in his answer are consistent with a
paternity proceeding.
   In Carroll v. Moore, 228 Neb. 561, 579, 423 N.W.2d 757,
767 (1988), we held that under the U.S. Constitution, an
indigent person who is alleged to be the father of a child has
“an absolute right” to court-appointed counsel in a paternity
proceeding. See, also, Elstun v. Elstun, 8 Neb. App. 97, 589
N.W.2d 334 (1999), reversed in part on other grounds 257
Neb. 820, 600 N.W.2d 835. We noted that due process was
implicated because, inter alia, the “threat of future incar-
ceration resulting from a finding of paternity is significant
in determining the need for counsel.” Carroll v. Moore, 228
Neb. at 578, 423 N.W.2d at 767. We stated: “The concepts
of ‘fundamental fairness’ and ‘meaningful opportunity to be
heard’ which are integral to the notion of due process make
the right to counsel mandatory.” Id. at 579, 423 N.W.2d at
767. In Carroll v. Moore, we observed that all parties, includ-
ing the State, are interested in an accurate and fundamentally
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
              STATE ON BEHALF OF MIA G. v. JULIO G.
                        Cite as 303 Neb. 207

fair determination of paternity. Although the posture of Carroll
v. Moore differs from the current case, its principles logically
apply to this action initiated by the State and in which paternity
was inextricably linked to the prosecution of the matter.
   Because the child support action was based on a notarized
acknowledgment of paternity, Julio’s challenge to the acknowl-
edgment under § 43-1409 rendered the action a “paternity pro-
ceeding.” Julio was indigent, and under our recognized course
of procedure, the district court correctly concluded that he had
a right to court-appointed counsel at public expense. In this
case, the district court properly ordered that appointed coun-
sel’s reasonable fees, up to and including preparation of the
closing letter to the client, be paid by Lancaster County.
                         CONCLUSION
   In this action initiated by the State, Julio, who was indi-
gent, challenged his signed acknowledgment of paternity under
§ 43-1409 based on a material mistake of fact. Julio had a right
to appointed counsel at public expense. Accordingly, the dis-
trict court did not err when it appointed counsel for Julio and
ordered Lancaster County to pay reasonable attorney fees. We
affirm the orders of the district court.
                                                    A ffirmed.
