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the future, after he was no longer legally detained on the 

California sentence, it would be illegal to detain him on 

the Nebraska sentences. Such a “possibility of future illegal 

detention” is not the basis for a writ of habeas corpus. See id. 

Because a writ of habeas corpus was not available to Johnson 

based on the claims he made in his petition and his position 

at the hearing, we agree with the district court that he was not 

entitled to habeas corpus relief.

CONCLUSION

We conclude that the district court did not err when it concluded that Johnson was not entitled to a writ of habeas corpus. 

We therefore affirm the district court’s denial and dismissal of 

Johnson’s petition for a writ of habeas corpus.

Affirmed.

Wright, J., participating on briefs.

Stacy M., appellee, v. 

Jason M., appellant.

___ N.W.2d ___

Filed February 13, 2015. No. S-14-214.

1. Equity: Appeal and Error. On appeal from an equity action, an appellate court 

decides factual questions de novo on the record and, as to questions of both 

fact and law, is obligated to reach a conclusion independent of the trial court’s 

determination.

2. Parent and Child: Paternity. A finding that an individual is not a biological 

father is not the equivalent of a finding that an individual is not the legal father.

3. Parent and Child: Paternity: Presumptions: Evidence. Under Nebraska common law, later embodied in Neb. Rev. Stat. § 42-377 (Reissue 2008), legitimacy 

of children born during wedlock is presumed. This presumption may be rebutted 

only by clear, satisfactory, and convincing evidence.

4. Jurisdiction: Divorce: Paternity. The district court in a dissolution proceeding 

has jurisdiction to resolve a disputed issue of paternity.

5. Divorce: Paternity: Child Support. Even if paternity is not directly placed in 

issue or litigated by the parties to a dissolution proceeding, any dissolution decree 

which orders child support implicitly makes a final determination of paternity.

6. Divorce: Paternity: Presumptions: Evidence. When the parties fail to submit 

evidence at the dissolution proceeding rebutting the presumption of paternity, the 

dissolution court can find paternity based on the presumption alone.
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7. Divorce: Paternity: Child Support. A dissolution decree which orders child 

support is a legal determination of paternity.

8. Divorce: Paternity: Child Support: Res Judicata. A dissolution decree that 

orders child support is res judicata on the issue of paternity.

9. Paternity: Evidence: Res Judicata. Neb. Rev. Stat. § 43-1412.01 (Reissue 

2008) overrides res judicata principles and allows, in limited circumstances, an 

adjudicated father to disestablish a prior, final paternity determination based on 

genetic evidence that the adjudicated father is not the biological father.

10. Parent and Child: Paternity. Neb. Rev. Stat. § 43-1412.01 (Reissue 2008) gives 

the court discretion to determine whether disestablishment of paternity is appropriate in light of both the adjudicated father’s interests and the best interests of 

the child.

11. Parent and Child: Due Process. Both parents and their children have cognizable 

substantive due process rights to the parent-child relationship. These rights protect the parent’s right to the companionship, care, custody, and management of 

his or her child, and they also protect the child’s reciprocal right to be raised and 

nurtured by a biological or adoptive parent.

12. Parent and Child: Child Support. Support of one’s children is a fundamental 

obligation which takes precedence over almost everything else.

13. Divorce: Child Support: Public Policy. The public policy of this state provides that parents have a duty to support their minor children until they reach 

majority or are emancipated, and a parent is not relieved of this duty by virtue 

of divorce.

14. Parent and Child: Child Support. The obligation of support is a duty of a 

legally determined parent.

Appeal from the District Court for Adams County: Terri S. 

Harder, Judge. Affirmed.

John B. McDermott, of Shamberg, Wolf, McDermott & 

Depue, for appellant.

No appearance for appellee.

Heavican, C.J., Connolly, Stephan, McCormack, MillerLerman, and Cassel, JJ.

Stephan, J.

After the dissolution of his marriage became final, Jason 

M. discovered through genetic testing that he was not the biological father of a child born during the marriage. He sought 

equitable relief in the form of an order suspending his child 

support obligation without terminating the parental relationship. He now appeals from an order denying his requested 

relief. We affirm.
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FACTS

Jason and Stacy M.’s marriage was dissolved by a decree 

entered by the district court for Adams County in March 2011. 

Although the decree itself is not included in the record, other 

evidence establishes that it required Jason to pay child support for three minor children. The oldest child is now of age, 

so Jason is currently paying approximately $600 per month 

in child support for the two younger children born during 

the marriage.

Jason suspected during the marriage that he was not the 

biological father of the youngest child, but he did not raise 

the issue of paternity in the dissolution proceedings. In 2013, 

Jason obtained genetic testing which established he was not 

the father of the child. Through counsel, he subsequently 

filed a pleading entitled “Action in Equity to Suspend Child 

Support.” He alleged Stacy knew the identity of the youngest 

child’s biological father but refused to obtain child support 

from him. He asserted the appropriate “equitable remedy” was 

to suspend his obligation to pay child support for the youngest child.

Stacy filed a pro se responsive pleading in which she alleged 

she did not know the identity of the child’s biological father, 

because she was “taken advantage of and [had] no knowledge 

of by whom.” She further alleged that she always assumed 

Jason was the child’s father and that Jason “is the only father 

[the child] knows and will ever know.”

After conducting an initial evidentiary hearing, the district 

court appointed a guardian ad litem for the child pursuant to 

Neb. Rev. Stat. § 43-1412.01 (Reissue 2008) and then conducted a second hearing at which the guardian ad litem participated. At the second hearing, Jason’s counsel objected to 

the appointment of the guardian ad litem, “because we’re not 

proceeding under 43-1412.01. And our action was an action in 

equity just to suspend the child support.”

Jason and Stacy testified at both hearings. Jason acknowledged that since the dissolution of the marriage, he has always 

exercised his visitation rights with the child and enjoys an 

“[e]xcellent” relationship with him. They celebrate holidays 

together, attend church together, go hunting and fishing, and 
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144 290 NEBRASKA REPORTS

enjoy other sporting activities. He wants the relationship to 

continue. His position in this case is aptly summarized by the 

following excerpt from his testimony:

[J]ust for the record, I would like you, the judge, to know 

and Stacy to know that I would continue and will always 

love [the child] as my son until I die. He is considered my 

son. I just feel that it’s not my responsibility to pay child 

support for [a child] that is not biologically mine.

Jason testified that his employment and income have not 

changed substantially since the decree was entered.

Stacy testified she did not know that Jason was not the biological father of the child until learning of the genetic testing 

results. She testified that at the relevant time, she was drinking at a bar with friends and thought she had been “drugged” 

and then “taken advantage of sexually” by a man whose identity she did not know. She did not report this incident because 

she was ashamed. She has never attempted to determine the 

identity of the child’s biological father. She agreed that Jason 

had a very good relationship with the child which she wants 

to continue. She stated that the child “thinks the world” of 

Jason and that she has not told the child that Jason is not his 

biological father, because “it would crush him.” Stacy testified that she used the child support paid by Jason to support 

the child and that termination of the child support obligation or the paternal relationship would not be in the child’s 

best interests.

The district court denied the relief sought by Jason. It reasoned that a child born during wedlock is presumed to be the 

legitimate offspring of the parties and that while § 43-1412.01 

afforded Jason a remedy to disestablish his paternity, he had 

not sought relief under that statute. The court found that Jason 

“wants the rights of a parent, but does not want the majority 

of the financial responsibility (child support) of a parent.” 

Finding no Nebraska case that would support the requested 

relief, the court declined to exercise its equitable power to 

grant relief.

Jason timely appealed, and we moved this case to our docket 

pursuant to our statutory authority to regulate the caseloads 
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of the appellate courts of this state.1 We note that Stacy did 

not file a brief or otherwise appear in this appeal.

ASSIGNMENT OF ERROR

 Jason assigns the district court abused its discretion by failing to suspend his child support obligation.

STANDARD OF REVIEW

[1] On appeal from an equity action, an appellate court 

decides factual questions de novo on the record and, as to 

questions of both fact and law, is obligated to reach a conclusion independent of the trial court’s determination.2

ANALYSIS

[2,3] There is compelling evidence that Jason is not the biological father of the child in question. But as we have recently 

noted, a finding that an individual is not a biological father 

is not the equivalent of a finding that an individual is not the 

legal father.3 Under Nebraska common law, later embodied in 

Neb. Rev. Stat. § 42-377 (Reissue 2008), legitimacy of children 

born during wedlock is presumed.4 This presumption may be 

rebutted only by clear, satisfactory, and convincing evidence.5

The testimony or declaration of a husband or wife is not competent to challenge the paternity of a child.6

[4-8] The parentage of a child born during a marriage is traditionally contested, if at all, in dissolution proceedings.7

 The 

1 Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).

2 Floral Lawns Memorial Gardens Assn. v. Becker, 284 Neb. 532, 822 

N.W.2d 692 (2012); Newman v. Liebig, 282 Neb. 609, 810 N.W.2d 408 

(2011); County of Sarpy v. City of Papillion, 277 Neb. 829, 765 N.W.2d 

456 (2009).

3 State on behalf of B.M. v. Brian F., 288 Neb. 106, 846 N.W.2d 257 (2014).

4 Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012). See Helter 

v. Williamson, 239 Neb. 741, 478 N.W.2d 6 (1991).

5 Id.

6 Id.

7 Alisha C., supra note 4. See Ford v. Ford, 191 Neb. 548, 216 N.W.2d 176 

(1974).
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146 290 NEBRASKA REPORTS

marital presumption of paternity can be rebutted at that time.8

The district court in a dissolution proceeding has jurisdiction to 

resolve a disputed issue of paternity.9 Even if paternity is not 

directly placed in issue or litigated by the parties to a dissolution proceeding, any dissolution decree which orders child support implicitly makes a final determination of paternity.10 When 

the parties fail to submit evidence at the dissolution proceeding 

rebutting the presumption of paternity, the dissolution court 

can find paternity based on the presumption alone.11 The trial 

court necessarily makes such a finding when it orders child 

support, because the trial court could not order child support 

without finding that the presumed father was the father of the 

child.12 Thus, a dissolution decree which orders child support is 

a legal determination of paternity.13 As a result, any dissolution 

decree that orders child support is res judicata on the issue of 

paternity.14 Under common law, the issue cannot be relitigated 

except under very limited circumstances through a motion to 

vacate or modify the decree.15

[9,10] However, in 2008, the Legislature enacted 

§ 43-1412.01, which overrides res judicata principles and 

allows, in limited circumstances, an adjudicated father to 

disestablish a prior, final paternity determination based on 

genetic evidence that the adjudicated father is not the biological father.16 Section 43-1412.01 gives the court discretion to 

determine whether disestablishment of paternity is appropriate 

8 Id.

9 Alisha C., supra note 4; Younkin v. Younkin, 221 Neb. 134, 375 N.W.2d 

894 (1985).

10 Alisha C., supra note 4. See DeVaux v. DeVaux, 245 Neb. 611, 514 N.W.2d 

640 (1994) (superseded by statute on other grounds as stated in Alisha C., 

supra note 4).

11 Id.

12 Alisha C., supra note 4; DeVaux, supra note 10.

13 Alisha C., supra note 4. See Snodgrass v. Snodgrass, 241 Neb. 43, 486 

N.W.2d 215 (1992).

14 Alisha C., supra note 4. See DeVaux, supra note 10.

15 Id.

16 Alisha C., supra note 4.
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in light of both the adjudicated father’s interests and the best 

interests of the child.17

During both the proceedings below and in this appeal, 

Jason unequivocally stated he is not seeking disestablishment 

of paternity pursuant to § 43-1412.01. Despite this, he argues 

that the language of the statute supports the equitable remedy 

he pursues by providing “a court with the authority to suspend a child support order without necessarily disestablishing 

paternity.”18 The first sentence of § 43.1412.01 authorizes an 

individual to ask a court to “set aside a final judgment, court 

order, administrative order, obligation to pay child support, or 

any other legal determination of paternity” based on the results 

of genetic testing. Jason argues that the use of the word “or” 

distinguishes an “obligation to pay child support” from a “legal 

determination of paternity,” thus authorizing a court to suspend 

the former without affecting the latter.

But this argument ignores the use of the word “other” in 

the same sentence. As we have noted, a decree of dissolution 

which orders a man to pay child support is an implicit determination of paternity, even if the issue of paternity was not 

contested. Clearly, this sentence of the statute lists an “obligation to pay child support” as one of several forms of a “legal 

determination of paternity” which may be challenged through 

genetic test results. This plain meaning is underscored by the 

fourth sentence of the statute, which provides: “A court that 

sets aside a determination of paternity in accordance with this 

section shall order completion of a new birth record and may 

order any other appropriate relief, including setting aside an 

obligation to pay child support.”19 In short, the language of the 

statute does not provide any support for the equitable relief 

which Jason seeks. Rather, it permits but does not require a 

court to set aside a child support obligation when paternity has 

been disestablished. It does not authorize any change in child 

support without such disestablishment.

17 Id.

18 Brief for appellant at 8.

19 § 43-1412.01.
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[11-14] Section 43-1412.01 provides Jason with a remedy 

at law to seek disestablishment of paternity and elimination 

of his child support obligation. But he has elected not to 

utilize that remedy, because he does not wish to disestablish 

paternity and thereby terminate the parental relationship. It 

is commendable that Jason has maintained a loving relationship with the child after learning that he is not the biological 

father. However, the parental relationship is not one which 

can be bifurcated in the manner Jason urges. Both parents and 

their children have cognizable substantive due process rights 

to the parent-child relationship.20 These rights protect the 

parent’s right to the companionship, care, custody, and management of his or her child, and they also protect the child’s 

reciprocal right to be raised and nurtured by a biological or 

adoptive parent.21 Support of one’s children is a fundamental 

obligation which takes precedence over almost everything 

else.22 One aspect of support includes the regular monthly 

payment of child support established by the guidelines.23 The 

public policy of this state provides that parents have a duty to 

support their minor children until they reach majority or are 

emancipated, and a parent is not relieved of this duty by virtue 

of divorce.24 The obligation of support is a duty of a legally 

determined parent.

Jason is the legally determined parent of this child, and 

he has not sought to set aside that determination despite 

the existence of a statutory remedy and apparent factual 

grounds to do so. We are not persuaded by his argument that 

suspension of his child support obligation is equitable or 

necessary to compel Stacy to seek support from the child’s 

biological father. The district court did not err in denying the 

requested relief.

20 In re Interest of Meridian H., 281 Neb. 465, 798 N.W.2d 96 (2011).

21 Id.

22 Caniglia v. Caniglia, 285 Neb. 930, 830 N.W.2d 207 (2013).

23 Id.

24 Henderson v. Henderson, 264 Neb. 916, 653 N.W.2d 226 (2002).
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CONCLUSION

For the foregoing reasons, we affirm the judgment of the 

district court.

Affirmed.

Wright, J., participating on briefs.

State of Nebraska, appellee, v. 

Terrell T. Thorpe, appellant.

___ N.W.2d ___

Filed February 13, 2015. No. S-14-495.

1. Postconviction: Appeal and Error. Whether a claim raised in a postconviction 

proceeding is procedurally barred is a question of law.

2. Judgments: Appeal and Error. When reviewing questions of law, an appellate 

court resolves the questions independently of the lower court’s conclusion.

3. Effectiveness of Counsel. A claim that defense counsel provided ineffective 

assistance presents a mixed question of law and fact.

4. Effectiveness of Counsel: Appeal and Error. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of 

the lower court for clear error.

5. ____: ____. With regard to the questions of counsel’s performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland 

v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an 

appellate court reviews such legal determinations independently of the lower 

court’s decision.

6. Postconviction: Appeal and Error. An appellate court will not consider as an 

assignment of error a question not presented to the district court for disposition 

through a defendant’s motion for postconviction relief.

7. Postconviction: Collateral Attack: Appeal and Error. A defendant cannot use 

a motion for postconviction relief to collaterally attack issues that were decided 

against him or her on direct appeal.

8. Postconviction: Appeal and Error. A motion for postconviction relief cannot be 

used to secure review of issues which were or could have been litigated on direct 

appeal, no matter how those issues may be phrased or rephrased.

9. Constitutional Law: Effectiveness of Counsel. A proper ineffective assistance 

of counsel claim alleges a violation of the fundamental constitutional right to a 

fair trial.

10. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a claim of 

ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or her 

counsel’s performance was deficient and that this deficient performance actually 

prejudiced the defendant’s defense.